HomeMy WebLinkAboutCAG2020-293 - Original - ExteNet Systems, Inc. - Non-Exclusive Fiber Franchise - 09/03/2020Agreement Routing Form
For Approvals, Signatures and Records Management
Approval Originator: Department:
Date Sent: Date Required:
Authorized
to Sign:
Director
Mayor
Date of
Council
Approval:
Budget
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Number:
Grant?
Type:
Yes No Agreement Information Vendor
Name: Category:
Vendor
Number: Sub-Category
Project
Name:
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Details:
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Amount:
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Start Date:Termination Date:
Notice required prior to
disclosure? Yes No Review/Signatures/Routing Date Received by City Attorney: Comments:
Date Routed to the Mayor’s Office:
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Visit Documents.KentWA.gov to obtain copies of all agreements
This form combines & replaces the Request for Mayor’s Signature and Contract Cover Sheet forms.
(Print on pink or cherry colored paper)
Contract Number:
adccW22373_6_19
Director initials ______
Manager initials ______
N/A
September 10, 2020
CAG2020-293
Franchise Bond
Bond No, 0786253-
WHEREAS, PrinciPal
Agreement.
KNOW ALL MEN BY THESE PRESENTS: ThAt EXICNEI gYSIEMS' INC . .
ipiin.ip"lj, ana Harco National Insuiance C-glrpanv - (Surety), a corporation duly
oroanizedunderthelawsofthestuG,areheldandfirmly
il1"1'"".i"-titV'dr'Rb'nt-
- ---
-(oblisee_),-in.thefull
and
just sum or t*en s. ($25'OOOTOO), the payment
of which sum, well and truly to bffi"dg the saidlrincipal and Surety bind
themselves, their heirs, administrators, executors, and assigns, jointly and
severally, firmly by these presents'
WHEREAS, the Principal and Obligee have entered into a Franchise Agreement
dated DATE, for a term of FIVE iears, is hereby referred to and made a part
hereof.
isrequiredtoperformcertainobligationsunderthis
2. This Bond shall be effective Au ust 28,2020 and shall remain in
full force and effect thereafte r for a period of one Year and will automaticallY
extend for additional one Year periods from the exPi ration date hereof, or
any future expiration date, unless the SuretY Provides to the Obligee not less
than sixty (60) daYs advance writte n notice of its intent not to renew this
WHEREAS, the Obligee has agreed to accept this bond as security against default
by principal of perfor:mance of lts obligations under said Agreement during the time
period this bond is in effect'
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH that if
the principal shall pirform its obligations under this Agreement, then this obligation
shall be void, otherwise to remain in full force and effect' unless
otherwise terminated, cancelled or expired as hereinafter provided'
PROVTDED HOWEVER, that this bond is executed subject to the following express
provisions and conditions:
1. The City shall determine whether Principal has satisfactorily performed as
required. Upon City's determination that Principal has failed to satisfactorily
perform, Principal shall be in default and the durety's obligations under this
bond shall immediately accrue; provided, however, that nothing in this
section shall prohibit Surety from'subsequently bringing an action to seek
repayment from the city for wrongly determining Principal's unsatisfactory
performance.
Bond or unless the Bond is earlier ca nceled pursuant to the following' This
Bond may be canceled at any time upon sixty (60) days advance written
notice from the Surety to the Obligee.
3' Neither cancellation, termination nor refusal by Surety to extend this bond,nor inability of Principal to file a replacement bond or replacement securityfor its obligations under said Agreement, shall constitute a loss to the Obligee
recoverable under this bond.
4' No claim, action, suit or proceeding shall be instituted against this bond
unless same be brought or instituted and process served within one year
after termination or cancellation of this bond.
5' No right of action shall accrue on this bond for the use of any person,
corporation or entity other than the Obligee named herein or the heirs,
executors, administrators or successors of the Obligee.
6. The aggregate liability of the surety is limited to the penal sum stated herein
regardless of the number of years this bond remains in force or the amount
or number of claims brought against this bond.
7. This bond is and shall be construed to be strictly one of suretyship only. Ifany conflict or inconsistency exists between the Surety's obligations as
described in this bond and as may be described in any underlying agreement,permit, document or contract to which this bond is related, then the terms of
this bond shall supersede and prevail in all respects.
Signed and executed this 28 day of Au ust 20 20
su
-
Sign
Frinf Narnp G"t
Date Date
h V, tli urrtg Prinf ftla William T. Krumm
FO Tifle'in Fact
Addresq:D3O lJo-rr€ny,Ult Pa!Arldreqc'2850 Golf Rd
e Citv: Rollinn Meadowsstatp: IL Zin:50O08
Telenhnne'(oZD- 5Dt'trDD Tplenhnne : 530-773-3800
Note: To be considered complete, both the Princioal and Suretv must sion thibond and the Surety must notarize its signature and attach a iopy of its power cattorney.
*
STATE OF WASHINGTON )
) ss.
couNw oF KrNG )
I hereby certify that I know or have satisfactory evidence that
is the person who appeared before me, and said
person acknowledged that he/she signed this instrument, on oath stated that he/she
is authorized to execute the instrument on behalf of [name of entity:]
as its [title:]and such
execution to be the free and voluntary act of such pafty for the uses and purposes
mentioned in the foregoing instrument.
WITNESS my hand and official seal hereto affixed the day and year first above
written.
NOTARY PUBLIC, in and for the State of Washington
residing at
My appointment expires:
State of
County of
lllinois
SS
Cook
On this 28th day of August in
year two thousand twenty the before ffi€, christina Laurendi,
Public in and for said county and state, residing therein, duly a
commissioned and sworn, personally appeared william T. Krumm,known to me to be the duly authorized Attorney-in-fact of HarcoNational lnsurance company and the same person whose name issubscribed to the within instrument as the Attorney-in-fact of said
company, and the said wlliam T. Krumm, duly acknowledged to me thathe subscribed the name of Harco National lnsurance Company and theretoas surety and his own name as Attorney-in-fact. lN wlrNESS WHEREOF, I
have hereunto set my hand and affixed my official seal the day and year in this
Certificate first above written.
My Commission
Expires
6130t2024
)
Notary Public in and for
County, State of
L'
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(,atrl
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trlE:)ttl
Christi
Dupaqe, lllinois
OFFICIAL SEAL
CHRISTINA I.AURENDI
NOTARY PUBLIC. STATE OF ILLINOIS''rr,rV
COf',f f,,rf SSION EXPIRES:00/30/24
POWER OF ATTORNEY
HARCO NATIONAL INSURANCE COMPANY
INTERNATIONAL FIDELITY INSURANCE COMPANY
Member companies of IAT lnsurance Group, Headquartered: 702 Oberlin Road, Raleigh, North Carolin a 27606
KNOW ALL MEN BY THESE PRESENTS: That HARCO NATIONAL INSURANCE COMPANY, a corporation organized and existing under the laws of
the State of lllinois, and INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and existing under the lawJof the State of New
Jersey, and having their principal offices located respeclively in the cities of Rolling Meadows, lllinois and Newark, New Jersey, do hereby constilute and
appoint
JODIE SELLERS, KATHLEEN IA'EAVER, JON A. SCHROEDER, WLLIAM T. KRUMM, KAREN E. SOCHA,
SHARON A. FOULK, MICHAEL MILLER
Rolling Meadows, lL
their true and lawful atiorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of
indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute, rule, regulation, contractor otherwise, and the execution of such instrument(s) in pursuance of these presents, shall be as binding upon the said HARCO NATIONAL
INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY, as fully and amply, to all intents and purposes, as if the same had
been duly executed and acknowledged by their regularly elected officers at their principal ofiiccs.
This Power of Aftorney is executed, and may be revoked, pursuant to and by authority of the By-Laws of HARCo NATIONAL INSURANCE COMPANY
and INTERNAT|ONAL FIDELITY INSURANCE COMPANY and is granted under and by authority of the following resolution adopted by the Board of
Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 13th day of December,2018 and by the Board of
Directors of HARCO NATIONAL INSURANCE COMPANY at a meeting held on the 13th day of December, 201 8.
"RESOLVED, that (1) the Chief Executive Officer, President, Executive Vice President, Senior Vice President, Vice President, or Secretary of the
Corporation shall have the power to appoint, and to revoke the appointments of, Attorneys-in-Fact or agents with power and authority as defined or limitedin their respective powers of attomey, and to execute on behalf of the Corporation and affix ihe Corporation's seal thereto, bonds, undertakings,
recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and (2) any such Officers of the Corporation
may appoint and revoke the appointments ofjoinlcontrol custodians, agents for acceptance ofprocess, and Attorneys-in-fact with authority to execute
waivers and consents on behalf of the Corporation; and (3) the signature of any such Offcer ofthe Corporation and the Corporation's seal miy be affixed
by facsimile to any power of attorney or certification given for the execution of any bond, undertaking, recognizance, contract of indemnity or oiher written
obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereaffer, being hereby adopted by the
Corporation as the original signature of such officer and the original seal of the Corporation, to be valid and binding upon the Corporation wit| the same
force and effect as though manually afftxed."
IN WTNESS WHEREOF, HARCO NATIONAL INSURANCE COMPANY and INTERNATIoNAL
FIDELITY INSURANCE COMPANY have each executed and attested these presents
on this 31st day of December,2018
STATE OF NEWJERSEY
County of Essex
STATE OF ILLINOIS
County of Cook
Kenneth
Executive Mce President, Harco National lnsurance Company
and lntemational Fidelity lnsurance Company
*
On this 31st day of December, 2018 , before me came the individual who executed the preceding instrument, to me personally known, and,
being by me duly sworn, said he is the therein described and authorized ofiicer of HARCO NATIONAL INSURANCE GOMpANy and
INTERNATIONAL FIDELITY INSURANCE COMPANY; that the seals affixed to said instrument are the Corporate Seals of said Companies; that the
said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies.
f,-$&
i"#:,q,lias
lN TESTIMONY W{EREOF, I have hereunto set my hand affixed my Official Seal, at the City of Newark,
New Jersey the day and year first above written.
Shirelle a Public of New Jersey
My Commission Expires April 4, 2023
CERTIFICATION
l, the undersigned officer of HARCO NATIONAL INSURANCE CoMPANY and INTERNATIoNAL FIDELITY INSURANCE COMPANY do hereby certifo
that I have compared the foregoing copy ofthe Power ofAttomey and affidavit, and the copy ofthe Sections ofthe By-Laws ofsaid Companies as set
forth in said Power of Attorney, with the originals on file in the home office of said companies, and that the same are correct transcripts thereol and of the
whole of the said originals, and that the said Power of Attomey has not been revoked and is now in full force and effect.
lN TESTIMONY WHEREOF, I have hereunto set my hand on this day, August 28, 2020
J*^'A"A.
;ttrts4 I o8a
SEAL
A00659
lrene Martins, Assistant Sesetary
STREET/PUBLIC RIGITT.OT-WAY EXCAVATION
MAINTENAT{CE NONI'
Bord No.4786254
KNOW ALL MEN BY THE$E PRESENTS, rhat we,Svstems.
as and hereinafter rsfcfredto asthe "Principal', and
a.s and referred to ns the "Surety'', are lreld md firmly
amunicipl cdporation
orgnnized and existingunderthe laws oftlre and hereinaftsr refcrred to asfie" City " inthe penal sum of Fiftv Thousand and 0011 00
Dollars lawful mon€y ofthe United States of Arnerics, fortlrepayment of which sum well and tnrlyto be msde,we hereby bind ourselves, our heirs, exscutors,adnini$fu|trs, sucoesss, and a8$gnq jointly and severally byttrese presente:
THE CONDITION OF THE FOREGOING OBLICATION IS SUCH THAT:
WHEREAS, the Principat has apptied for e punritto excavate
ofthe FranchiseAqreement auringttre calendar par
withinthe public riglrt oflway
WHEREAS, the hincipal has beetl giveir permission to excavate within the prblic rigft-ofr
wey to tt" during thg said elendnr year, to combuct
c€rtain inprovenrerrts provided such exgavafion compties ufrh a[ local ordinafr, regulations anOspecifications ofth" FranqhiseAqre"ment :
NOW, TI{EREFORE, ifsaid Prircipol ehatl omstsrrct and corylete or cause to be construct€dad curyl*ed all excavatior mrenced in the said cdendar year in aocmdance with all local
ordinance$' regulnions ard specifiodions such that Baid.r,**ri* is aoofred by thc Clty Engirre€rorhis deignee, and shall mdre $'ithout &fect ad reed ofrepairfor
"
pnil;dtn;pliear;fro*r
lhe dnte of acceptance by the CjrV F,neirffir or his desigee, tlr.* tlri, oUiigarion stlnll be and bocqnenull asrd voi4 orherwisc it sh*lt rerrain infult foreo ard effect
Wtxncver PrimiPol is d€ctarcd by City to bc in dcfnult urdcrthe aqditiors ofthis bon4 tI,.City may make demand in utriting upon the Surety fc palanent of aff nm* nmsu"y to rryab or
cause lo be repairod th above desdbea n+rovementtsl said $rrtl not to oroeed rhe ienat amourf.
The Suretyfor value received,hercbystipulaten that it waiveg knowldge of qpecific addresse,
notice ofspecific jobs cflnrnffrcd by the Principnl for which this bond oover:s perfonnance, andnotic€ ofdredats of acoSance of each pojoct conurmnced within dro said calcndar year, and
instead egre€$ to bind maintenance fortwo years following theacoefrance bythe City
Engineer on each excavation in the F ranchise
on behalfof said hincipal &ringtre said
of 2o2a
BdtSnEgrFUU.lcEIGgf4_WAy gKcAytgotrroND d.c
calenrdar year.
rigtrt-of-way conrmenced by or
IN TESTIMONY WHBREOF, mid Principal has hsreunto sot his/bsr hsnd, nnd seid $roty has
causedft€s,e preaentc to be elrectrted in its name; rnd its ctrporale $eal lo be hreuffo atrnedbD'ih
attcney-irfaci &ly autlmrizal thectildo so to da on thig the 28th day of August
ExteNet , lnc.
at
nce Company
Ailomey.irFact
2020
*
SEAL
r004
BonautlRgmIUREERIOIIT-OF-WAYF(CAV$IONBoNp.&a
State of
County of
lllinois
Cook
On this 28th day of August in
year two thousand twenty the before ffie, christina Laurendi,
Public in and for said county and state, residing therein, duly a
commissioned and sworn, personally appeared William T. Krumm,known to me to be the duly authorized Attorney-in-fact of Harco
National lnsurance company and the same person whose name is
subscribed to the within instrument as the Attorney-in-fact of said
company, and the said william T. Krumm, duly acknowledged to me thathe subscribed the name of Harco National lnsurance Company and theretoas surety and his own name as Attorney-in-fact. lN WTNESS WHEREOF, I
have hereunto set my hand and affixed my official seal the day and year in this
Certificate flrst above written.
My Commission
Expires
6t3A/2024 Notary tc for Laurendi
County, State of Dupage, lllinois
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OFFICIAL SEAL
CHRISTINA LAURENDI
NOTARY PUBLIC. STATE OF ILLINOIS
MY COMMISSI0N EXPIRES:06/30/24
POWER OF ATTORNEY
HARCO NATIONAL INSURANCE COMPANY
INTERNATIONAL FIDELITY INSURANCE COMPANY
Member companios of IAT lnsurance Group, Headquarteredl 702 Oberlln Road, Ralelgh, North Caro[na 27605
Bond# fr786254
Principal
Obligee Citu of Kent
KNOW ALL fSEil BY THESE PRESEI{TS: That HARGO l{ATlOt{AL ll{SURAllcE GOMPAI{Y, a corporation organized and oxlsting under the tawe of
the State of lllinois, and IilTERNATIOI|AL FIDEUTY INSURANGE COMPAI|Y, a corporation oryanized and existing under the laws of the State of N6w
Jersey, and having their principal offices located respec{ively in the cilies of Rolling Meadows, lllinois and Newark, New Jersey, do horsby constttute and
appoint
\Mlliam T. Krumm
theh Fuo and lauful attomey(s)-in.fact to 6x€cut6, seal and deliver for and on its b€haff as surety, any and all bonds and undertrakings, contracts of
indemnity and other wrltings obligatory in lhe nature lhereof, which are or may bo allow€d, requirod or permitted by law, statute, rule, regulation, contrac,tor othenvis€, 8nd the execution of such instrument(s) in pu(iuanc€ of these pros€nts, shall be as binding upon lhe said HARCO I{ATIONAL
IilSURANCE COMPANY and |i{TERNAIONAL FIDELITY IIISURANCE COMPANY, as fully and amply, lo all intents anct purpos€s, as if the same had
been duly exearted and acknowledgod by their regula.ly elect€d offi@rs at thoir pdncipal officos.
This Power of Attomey i$ €xecut€d, and may be re\,oked, pursuant to and by authority of the By-Lavr'|s of HARCO l{AnOilAL IilSURAilCE CoilpAlly
and INTERNATIOilAL F|DELITY II{SURAI{CE CoilpAlrty and is graded undor and by authority of tho bltowing rcsolulion adopted by the Board of
Diredors of INTERilAnOilAL FIDELITY II{SURANCE GOilPAI{Y at a me€ting duly held on the 20th day of July, 2010 and by the Board of Dtrecio;3 of
HARCO ilAnOilAL INSURANGE COmPAilY at a m€eting h6ld on the 13th of Decemb€r, 2018
'RESOLVED, that (1) the Chief Executive Ofiicer, Pr€sident, Executive Vice President, Vlco Presidsnt, or Secretary of the Co;poration shell have thopo{ter to appoint, and to revoke tho appointrnonts of, Attomeys-in-Fact or agents with power and authority as defingd or limited in ihek respectiv€ powers
of attomey, and to oxecute on behalf of he Corporation and afix he Corporation's s€al thereto, bonds, undertakings, recognkan@s, contracts of
indemnity and other writton obligations in the nature lhereof or related thoreto; and (2) any such Odicers of the Corporafion may-appoint and r€vok€ theappointn€nts of iint-onlml custodians, agonts for accoptan@ of prooees, and Attomeys-in-fac* wlth authority to exocrjte Givers anO @nssnts on
behalf of the Cotporation; and (3) the signature of any euch offcer of the Corporation and th6 corporation's eeal may be affix€d by fac$imile to any pow€r
o-f attomey or aerlificafion gfuen for lhe execution of any bond, undoilaking, rcognizance, contict of indernnig oiolher wrilten obligetion in $e nature
thsreof or Elated theleto, such signafur€ and seals s'h€n so used whether herotobre or heleafter, being hereby adopted by the-Corporation as the
original signatu.s of such offcer and the original Goal of the Corporation, lo b€ valkl and binding upon the Corporation wlth the same fon:e and €foct as
though manually affx€d.'
lN WTNESS WHEREOF, HARCO I{ATIONAL INSURANCE COMPANY and TNTERIATIONAL
FIDELITY INSURANCE COMPAIIY have each executed and att€st€d there presentg
on this 28th day of August, 2020
trvfaNef Srrcfomq lnn
STATE OF NEW JERSEY
County of Essex
STATE OF ILUNOIS
County of Gook
Executive Mce Prcsldont, Hsroo Nationsl lnsurance Company
and lntemational Fidelily lnsurance Company
On this 28th day of August, 2020 , before me came the individualwho executed the proceding instrument, to me p€rsonally known, and,
being by mo duly swom, sald he is lhe ther€in describ€d and authorized offlcsr of HARGO NAnONAL INSUIiANGE COMpANy and
-
II{TERNATIOI{AL FIDEUTY IIISURANCE COIIIPAIfY; that lhe soals aft(€d b said instrument ars tho Coryorate Soals ot said companie3; that the
said Corporate Seals and his signature w€re duly affxed by ord€r of the Boalds of Dfu€cfurs of said Companies.
A.lN TESTIMONY WI'IEREOF, I have hemunto set my hand affxed my Offcial Seal, at tho City of Newark,
New Jersey the day and year ffrsl abov6 wrifton.
CERNFrcAilON
My Commission April4, 2023
I, th€ undersignod offcor of IIARCO NATIOI{AL II{SURA}{CE COMPAI{Y and lNTERltATtOl{AL FTDEL]rY NSURAT{CE COMpAily do hereby certify
that I have compared the forcgoing copy of the Power of Altomey and qffidavit and the copy of the Sections of the By-Lawe of said Companies as set
forth in sald Power of Attomey, with the originals on fil€in the home ofnco of sald companies, and that the same are correct transcripts lhsrcof an.t
whole of lhe said originals, and that the said Power of Aftomoy has not b€€n revoked and is now in full force and effect.
lN TESTIMONY WHEREOF, I have hereunto set my hand this 28th day of August, 2020
J*,'jun
C'a@ *
sratts{SEAL
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4rBr9
SEAL
r 984
VER2 2/2019 e-PoA€ingl€_Pindpal-Obfgeo lr€ne Martlns, Assistrant Secretary
ORDINANCE NO. 4364
AN ORDINANCE of the City Council of theCity of Kent, Washington, granting ExteNetSystems, Inc. a 10-year non-exclusive fiberfranchise, and authorizing the Mayor to sign all
documents necessary to implement the full terms
of the negotiated agreement.
RECITALS
A. ExteNet systems, Inc., a Deraware corporation,
("Franchisee") has requested that the city council grant it a non-exclusive
franchise to construct, maintain and operate a telecommunications
network in the city's right-of-way. This franchise does not authorize the
installation of small cells. ExteNet will enter into separate agreements with
the City for the installation of small cells.
B. Rcw 35A.47.o4o allows the city to grant nonexclusive
franchises to utility and cable providers for their use of city right of way,
but provides a franchise may not be adopted until at least five days have
passed after the franchise is first introduced to the City Council. This
franchise was first introduced to council at its regular meeting on July 21,
2020. Thereafter, it was presented to Council a second time at its regular
meeting on August 4, 2ozo. Through this ordinance, council grants a 10-
year flber franchise to ExteNet and authorizes the Mayor to sign all
documents necessary to fully implement the agreement negotiated
between the City and ExteNet.
Fi be r F ra nc h ise Auth o rized -ExteUet Systems, Inc,
1
\
NOW, THEREFORE, THE CITY COUNCIL OF THE CIW OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
sEcrroil 7. - Franchise Granted. The Fiber Franchise Agreement
between the city of Kent and ExteNet systems, Inc,, substantially in the
form attached and incorporated as Exhibit A, is hereby granted. upon
ExteNet's acceptance of the Fiber Franchise Agreement, the Mayor is
authorized to execute the same on behalf of the city of Kent, subject to
those changes that are not material in nature and may be authorized by
the City Attorney.
sEcrroM 2' Mayoral Authorization. The Mayor is fufther
authorized to execute all documents necessary to implement the full terms
of the negotiated franchise.
sEcrroU 3. - seyerabilitv. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall remain in full force and effect.
sEcrroU 4. - Effective Date_. This ordinance, being an exercise of
a power specifically delegated to the city's legislative body, is not subject
to referendum, It shall be published and will take effect thirty (30) days
after its passage. The Fiber Franchise Agreement, however, shall become
effective only upon its acceptance by ExteNet Systems, Inc. and execution
by the Mayor. Should ExteNet fail to timely file its written acceptance of
the Fiber Franchise Agreement, ExteNet will be deemed to have rejected
and repudiated the Fiber Franchise Agreement and the franchise will be
voidable by the City.
Fiber Franchise Authorized-
Exteilet Systems, fnc,
2
AP D
A
ATTEST:
KIMBERLEY oTo, CITY
FITZPATRICK, CITY ATTORNEY
Auqust 4, 2020
Date Approved
August 4. 2020
Date Adopted
Auqust 7. 2020
Date Published
Fiber Fra nchise Authorized-
ExteNet Systemsr lnc.
3
EXHIBIT A
Fiber Franchise Agreement
EXTENET sYsTEMs, rNc' AND THE clw oF KENT, wAsHINGToN
FIBER FRANCHXSE AGREEMENT
TABLE OF CONTENTS
SECTION 1.DEFINITIONS........
SECTION 2,FRANCHISE GRANTED....,
SECTTON 3. GRANT OF AUTHORIW LIMITED.
SECTION 4. LOCATION OFFACILITIES............
I
2
3
SECTION 5.
5.1
5.2
5.3
5.4
SECTION 6.
SECTION 7.
SECTION 8.
SECTION 9.
SECTION IO.
SECTION 11.
4
4
4
5
5
6
6
7
7
7
7
7
5.5
5.6
5.7
5.8
5.9
5.10
Relocation
RETOCATION OF FACILITIES...,.
Relocation Requ irement.
Locate
Notice and Relocation Process........
Alternative Arra ngem ents
Contractor Delay Claims.
Indemnification..
Moving of Buildings or Other Objects.......
City's Costs
Survival...
UNDERGROUNDING OF FACILITIES...,.
TNFORMATTON, rNVE
Information Request....
Current Inventory........
NTORY AND RECORDS..
Inspection
Public Records Act.,...
Annual Audit
.8
7.t
7.2
7.3
7.4
7.5
.10
..10
,,1 1
..11
..L2
13UNAUTHORIZED FACXLITIES,......,....,
WORK IN THE RrGHTS.OF.WAY........,t4
TREES.....,,,L7
ONE CALL LOCATOR SERVICE. ....18
page i
City of Kenf - EXTENET SYSTEMS, INC
2024 Franchise Agreement
EMERGENCIES.
RECOVERY OF COSTS....
SECTION 18. CITY'S RESERVATION OF RIGHTS.............I"25
SECTION 12.
SECTION 13.
SECTION 14.
SECTION 15.
SECTION 16.
SECTION 17.
sEcTloN 19.
19.1
L9.2
19.3
t9.4
19.5
19.6
19.7
SECTION 20.
20.t
20.2
20.3
20.4
20.5
20.6
SECTION 21. ABANDONMENT
TELECOMMUNICATIONS N ETWORK.
SAFETY REQUTREMENTS....
WORK ON CONTRACTORS AND SUBCONTRACTORS,.....
PROVISION OF CONDUIT AND DARK FIBER..
RESTORATION AFTER CONSTRUCTION
INDEMNIFICATION; LIABfLIW....
General Indemnification.......,.,
Indemnification for Relocation..
Procedures and Defense..
Avoidance
Expenses,
RCW 4.24.115....
Survival...
INSURANCE....
Policies..
Deductible/Certificate of Insu rance... . .
Requirements.
t8
..19
.20
2L
22
.24
26
26
27
.27
28
28
28
29
29
29
30
30
Acceptability of Insurers..,
Verification of Coverage.....
Maintenance of Insurance....
..........30
........,..31
..........31
FRANCHISEE,sOF
....31
sEcTroN 22. BONDS... ..,,,32
22.1
22.2
22.3
22.4
SECTION 23.
SECTION 24.
Construction Guarantee.....,......32
Maintenance Guarantee... .....33
Franchise Bond... .,,..33
Form of Bonds 34
REMEDIES TO ENFORCE COMPLIANCE.,.....,.34
REVOCATION .........36
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City of Kenf - EXTENET SYSTEMS, INC
2020 Franchise Agreement
SECTION 25.
SECTION 26.
SECTION 27.
SECTION 28.
SECTION 29.
SECTION 30.
NON-WAIVER...
POLICE POWERS AND CITY REGULATIONS,,...
ENTIRE AGREEMENT,.......
EMINENT DOMAIN,
VACATION
NOTICE
36
36
CONTROL
cosT oF PUBLICATTON. .......,.,,37
ACCEPTANCE..37
,37
OR
.38
39
39
40
,44
SURVIVAI.
ASSIGNMENT AND CHANGES OF OWNERSHIP
SECTION 3T.
SECTION 32.
SECTION 33.
SECTION 34.
SECTION 35.
SECTION 36.
SECTION 37.
SECTION 38.
SECTION 39.
SECTION 40.
SEVERABILITY.. .,.,4O
COMPLIANCE WITH ALL APPTICABLE LAWS...................4I
ATTORNEY'S FEES. .,.,,,..4I
HAZARDOUS SUBSTANCES.... ,,..,........42
LICENSES, FEES AND TAXES..42
MISCELLANEOUS......43
Page iii
City of Kent - EXTENET SYSTEMS, fNC
2020 Franchise Agreement
EXTENET sYsTEMs, rNc., AND THE crrY oF KENT' wAsHxNGToN
FIBER FRANCHISE AGREEI,IE NT
SECTION l, ' Deflnitlgns. In addition to terms otherwise deflned herein,
the following definitions shall apply generalty to the provisions of this Franchise.
1.1 Director means the public Works Director or designee.
I.2 Emergency means a condition posing an imminent threat to property, life,
health, or safety of any person or entity.
1.3 Facilities mean one or more elements of Franchisee's telecommunications
network, with all necessary cables, wires, conduits, ducts, pedestals, antennas,
electronics, and other necessary appurtenances; except that new utility poles or
towers for overhead wires, cabling or antennas are specifically excluded. Facilities
shall not include microcells or small cells to be owned or operated by Franchisee.
Equipment enclosures with air conditioners or other noise generating equipment are
also excluded from Facilities, to the extent any such equipment is located in zoned
residential areas of the City.
t'4 Rights-of-Way (singular "Right-of-Way") as used in this Franchise, means the
surface of, and the space above and below, diy public street, highway, freeway,
bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive,
circle, pathways, spaces, or other public right-of-way, and over which the City has
authority to grant permits, licenses or franchises for use thereof, or has regulatory
authority thereover, Right-of-Way does not include railroad right-of-way, airports,
harbor areas, buildings, parks, poles, conduits, open spaces, nature trails, poles,
dedicated but un-opened right-of-way, environmentally sensitive areas and any
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City of Kent - EXTENET SYSTEMS, INC
2020 Franchise Agreement
land, facilities, or property owned, maintained, or leased by the city in its
governmental or proprietary capacity or as an operator of a utility.
SECTION 2. - Franchlse Granted.
2.L Pursuant to RCW 35A.47.040, the City of Kent, a Washington municipal
corporation ("city"), hereby grants to Franchisee, its successors, legal
representatives and assigns, subject to the terms and conditions set forth below, a
non-exclusive Franchise for a period of ten (10) years, beginning on the effective
date of this Franchise.
2.2 This Franchise grants Franchisee the right, privilege, and authority to
construct, operate, maintain, replace, relocate, restore, upgrade, remove,
excavate, acquire, sell, lease, and use all necessary Facilities for a
telecommunications network in, under, on, across, over, through, along or below
the public Rights-of-Ways located in the City, and any areas added to the corporate
limits of the City during the term of this Franchise (the "Franchise Area"). All
Facilities require city permits issued pursuant to section 9.3.
2'3 This Franchise shall not prevent the City from granting other or further
franchises in, along, over, through, under, below, or across any Rights-of-way.
This Franchise shall not prevent or prohibit the City from using any Rights-of-Way
or affect its jurisdiction over any Rights-of-Way or any part of Right-of-Way. The
City shall retain power to make all necessary changes, retocations, repairs,
maintenance, establishment, improvement, dedication of Right-of-Way as the City
deems fit, including the dedication, establishment, maintenance, and improvement
of all new Rights-of-Way, thoroughfares, and other public properties of every type
and description.
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SECTION 3. - Grant of Authorityt Limitegl.
3.1 The authority granted by this Franchise is a limited, non-exclusive
authorization to occupy and use the City's Rights-of-Way. Franchisee represents
that it currently provides or intends to provide the following services within the
City: data transport, internet access, and local and long distance voice selices,
including IP voice services, cell site fronthaul and backhaul and Facilities leasing to
third parties, and all other such regulated services that the Washington
Transportation and Utilities Commission has authorized Franchisee to offer and
provide as well as all other such non-regulated and lawful services that the
Franchisee may now or in the future offer (the "selvices'). If Franchisee desires to
expand the regulated Services provided within the City, it shall provide written
notification of the addition of such regulated services prior to the addition of the
regulated service or within a reasonable time (not to exceed ninety (90) days) after
such regulated services are offered; except that Franchisee may not offer Cable
Services as that term is defined in 47 U.S.C. g 522(6).
3.2 Nothing within this Franchise shall be construed to grant or convey any right,
title, or interest in the Rights-of-Way of the City to Franchisee other than for the
purpose of providing the Services.
3.3 This Franchise does not and shall not convey any right to Franchisee to install
its Facilities on, under, over, across, or to otherwise use City owned or leased
propefties of any kind outside of the incorporated area of the City or to install
Facilities on, under, over, across, or otherwise use any city owned or leased
property other than the City's Rights-of-Way. This Franchise does not convey any
right to Franchisee to install its Facilities on, Lrnder, over, or across any facility or
structure owned by a third-party without such written approval of the third-party.
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3'4 Franchisee is authorized without prior City approval, to offer or provide
capacity or bandwidth, leased fiber or leased conduits or any other Services set
forth in Section 3.1 to its customers consistent with this Franchise provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and remains
responsible for constructing, installing, and maintaining its Facilities
pursuant to the terms and conditions of this Franchise;
b' Franchisee may not grant rights to any customer or lessee that are
greater than any rights Franchisee has pursuant to this Franchise;
c. Such customer or lessee shall not be construed to be a third-party
beneficiary under this Franchise; and
d. No such customer or lessee that accesses Franchisee's
telecommunications Facilities within the City limits may use the
telecommunications system or Services for any purpose not authorized
by this Franchise, unless that customer has a franchise agreement
with the City and then the customer may use Franchisee's Facilities or
Services consistent with the terms of its franchise.
ECTION 4. - Loqation of Facllities, Franchisee may locate its Facilities
anywhere within the Franchise Area consistent with the City's Design and
Construction Standards and subject to the City's applicable permit requirements,
Franchisee shall not be required to amend this Franchise to construct or acquire
Facilities within the Franchise Area.
SECTION 5. - Relocatlon of Faclllfies.
5.1 Relocation Requifement. Franchisee agrees to protect, support, temporarily
disconnect and then reconnect, relocate, or remove from any rights-of-way any of
its Facilities when reasonably required by the City by reason of traffic conditions,
public safety, dedications of new Rights-of-way, the establishment and
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2020 Franchise Agreement
improvement of new Rights-of-Way, widening or improvement of existing Rights-of-
Way or both, street vacations, freeway construction, change or establishment of
street grade, or the construction of any public improvement or structure by any
governmental agency acting in a governmental capacity or as otherwise necessary
for the operations of the City or other governmental entity. Collectively, such
matters are referred to within this Franchise with the term "Public Improvement."
5.2 Relocation. If the request for relocation from the City arises from a public
Improvement, in which structures or poles are either replaced or removed, then
Franchisee shall relocate or remove its Facilities as required by the City, and at no
cost to the City, subject to the procedure in Section 5.4. Franchisee acknowledges
and agrees that the placement of Facilities on third pafty-owned or City owned
structures does not convey an ownership interest in such structures. Franchisee
acknowledges and agrees, that to the extent Franchisee's Facilities are on poles
owned by third parties, the City shall not be responsible for any costs associated
with requests for relocation which the City makes solely for aesthetic purposes and
where such request arises out of a Public Improvement.
5.3 Lo.-cate. Upon written request of the City, or a third party performing work in
the Right-of-Way, and in order to facilitate the design of City street and Right-of-
Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and
if determined necessary by the City, to excavate and expose its Facilities for
inspection so that the Facilities' location may be taken into account in the
irnprovement design. The decision as to whether any Facilities need to be relocated
in order to accommodate the Public Improvement shall be made by the City upon
review of the location and construction of Franchisee's Facilities. The City shall
provide Franchisee at least fourteen (14) calendar days'written notice prior to any
excavation or exposure of Facilities. Franchisee shall be responsible for any delays
due to failure to locate its Facilities when requested, except that Franchisee shall
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City of Kenf - EXTENET SVSTEMS, rNC
2020 Franchise Agreement
not be responsible for delays or damages due to circumstances beyond the control
of the Franchisee.
5.4 Notice and Relocation Procedure. If the City determines that the Public
Improvement necessitates the relocation of Franchisee's existing Facilities, the City
shall:
a. At least ninety (90) calendar days prior to commencing the Public
Improvement, provide Franchisee with written notice requiring such
relocation and a date by which relocation must be complete; provided,
however, that in the event of an emergency situation, defined for
purposes of this Franchise as a condition posing an imminent threat to
property, life, health, or safety of any person or entity, the City shall
give Franchisee written notice as soon as practicable; and
b. At least ninety (90) calendar days prior to commencing the Publlc
Improvement, provide Franchisee with copies of pertinent portions of
the plans and specifications for the improvement project and a
proposed location for Franchisee's Facilities so that Franchisee may
relocate its Facilities in other City Rights-of-Way in order to
accommodate such improvement project; and
c. After receipt of such notice and such plans and specifications,
Franchisee shall complete relocation of its Facilities consistent with the
date for relocation established in accordance with this Section 5.4 at
no charge or expense to the City, except as otherwise provided by law.
Relocation shall be accomplished in such a manner as to accommodate
the Public Improvement.
5.5 Alternative Arrangements. The Franchisee may make its own appropriate
arrangements in response to a request for relocation of its Facilities from a person
or entity other than the City, so long as any improvements being constructed are
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City of Kenf - EXTENET SYSTEMS, fNC
2020 Franchise Agreement
not or will not become City-owned, operated or maintained; except that any such
arrangements shall not unduly delay a City construction project.
5'6 Csntractor Delay Claims. Franchisee shall be solely responsible for the out-
of-pocket costs incurred by the City for delays in a Public Improvement to the
extent the delay is caused by or arises out of Franchisee's failure to comply with the
final schedule for the relocation (other than as a result of a Force Majeure Event or
causes or conditions caused by the acts or omissions of the City or any third party
unrelated to Franchisee; Franchisee vendors and contractors shall not be
considered unrelated third parties). Such out-of-pocket costs may include, but are
not limited to, payment to the City's contractors and/or consultants for increased
costs and associated court costs, interest, and reasonable attorneys'fees incurred
by the City to the extent directly attributable to such Franchisee's caused delay in
the Public Improvement.
5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay the costs
of defending the city, in accordance with the provisions of section 19.
5.8 Moving of Buildings or Other Obj-ects. Franchisee shall, on the request of any
individual or private entity holding a valid permit issued by a governmental
authority, temporarily remove, raise or lower its Facilities to permit the moving of
buildings or other objects. The expense of such temporary removal, raising or
lowering of Facilities shall be at the expense of the requestor.
5.9 City's Costs. If Franchisee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in this Section 5,
the City may perform such work or cause it to be done, and the City's costs shall be
paid by Franchisee pursuant to Section s L7 .3 and L7 .4.
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City of Kenf - EXTENET SVSTEMS, INC
2O2O Franch ise Agreement
5.10 Survival. The provisions of this Section 5 shall survive the expiration or
termination of this Franchise during such time as Franchisee continues to have
Facilities in the Rights-of-Way.
SECTION 6. - Undergroundina of Facilitias,
6,1 Franchisee shall install all wires, cables or other facilities underground
(unless specifically authorized by permit of the City) in the manner required by the
City as described in chapter 7.10, Kent City Code, where all other utilities are
required to underground. Unless otherwise permitted by the City, Franchisee shall
also underground its Facilities in all new developments and subdivisions and in any
development or subdivision where utilities are currently underground. Except as
specifically authorized by the City, Franchisee shall not erect poles or run or
suspend wires, cables, or any other facilities on existing poles.
6.2 Franchisee acknowledges and agrees that if the City does not require the
undergrounding of its Facilities at the time of a permit application, the City may, at
any time in the future, require that the Franchisee to underground its Facilities at
Franchisee's expense.
6.3 If the City requires the undergrounding of the aerial utilities in any area of
the City, Franchisee shall underground its aerial Facilities in the manner specified
by the City, concurrently with and in the area of the other affected utilities. The
location of any relocated and underground utilities shall be approved by the City.
Where other utilities are present and involved in the undergrounding project,
Franchisee shall only be required to pay its fair share of common costs borne by all
utilities, in addition to the costs specifically attributable to the undergrounding of
Franchisee's own Facilities, "Common costs" shall include necessary costs not
specifically attributable to the undergrounding of any particular facility, such as
costs for common trenching and utility vaults. "Fair share" shall be determined for
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City of Kent - EXTENET SYSTEMS, fNC
2020 Franch ise Agreement
a project on the basis of the number of conduits of Franchisee's Facilities being
undergrounded in comparison to the total number of conduits of all other utility
facilities being undergrounded. This Section 6.3 shall only apply to the extent
Franchisee has existing aerial Facilities in the City or is specifically authorized to
build aerial Facilities by the City.
6.4 Within forty-eight (48) hours (excluding weekends and City-recognized
holidays) following a request from the City, Franchisee shall, at its sole cost and
expense, locate underground Facilities by marking the location on the ground. The
location of the underground Facilities shall be identified using orange spray paint,
unless otherwise specified by the City, and within two feet of the actual location.
6.5 Franchisee shall be entitled to reasonable access to open utility trenches,
provided that such access does not interfere with the City's placement of utilities or
increase the City's costs, Franchisee shall pay the Cityt actual costs resulting from
providing Franchisee access to an open trench, including without limitation the pro
rata share of the costs of access to an open trench and any costs associated with
the delay of the completion of a public works project. Franchisee shall reimburse
the City in accordance with the provisions of Section 17.3 and Section 17.4.
6.6 Franchisee shall not remove any underground cable or conduit that requires
trenching or other opening of the Rights-of-Way along the extension of cable to be
removed, except as provided in this Section 6.6. Franchisee may remove any
underground cable from the Right-of-Way that can be removed without trenching or
other opening of the Right-of-Way along the extension of cable to be removed, or if
otherwise permitted by the City. Franchisee may remove any underground cable
from the Rights-of-way where reasonably necessary to replace, upgrade, or
enhance its Facilities, or pursuant to Section 5, Franchisee must apply and receive
a permit, pursuant to Section 9.3, prior to any such removal of underground cable
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City of Kent - EXTENET SYSTEMS' INC
202A Franchise Agreement
or conduit from the Right-of-Way and must provide as-built plans and maps
pursuant to Section 7.
6'7 When the City determines, in the Cityt sole discretion, that Franchisee's
underground Facilities must be removed in order to eliminate or prevent a
hazardous condition, Franchisee shall remove the Facilities at Franchiseet sole cost
and expense.
6.8 Underground cable and conduit in the Right-of-Way that is not removed will
be deemed abandoned and title thereto shall vest in the City at no cost to the City.
The City may also pursue any available remedy set forth in Section 5 and Section
23.
6.9 The provisions of this Section 6 shall survive the expiration, revocation, or
termination of this Franchise during such time as Franchisee continues to have
Facilities in the Rights-of-Way. Nothing in this Section 6 shall be construed as
requiring the City to pay any costs of undergrounding any of Franchisee's Facilities.
SECTION 7, - fnformation, Inventorv and Records.
7.L Information Request.
a. Franchisee shall supply and maintain updated, at no cost to the city,
any information reasonably requested by the City to coordinate its
functions with the Franchisee's activities and fulfill any municipal
functions under state law. This required information may include, but
is not limited to, any installation inventory, location of existing or
planned Facilities, maps, plans, operational data, and as-built drawings
of Franchisee's Facilities in the City, Franchisee shall warrant the
accuracy of all information provided to the City.
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City of Kent - EXTENET SYSTEMS, INC
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within thirty (30) calendar days of a written request from the Director,
but in no event more than once annually, the Franchisee shall furnish
the city with information sufficient to demonstrate: 1) that the
Franchisee has complied with all applicable requirements of this
Franchise; and 2) that all utility taxes due the city in connection with
the Franchisee's services and Facilities provided by the Franchisee
have been properly collected and paid by the Franchisee.
7.2 Current Inventory. Franchisee shall maintain a current inventory of Facilities
throughout the Term of this Franchise. Franchisee shall provide to City a copy of
the inventory report no laterthan one hundred eighty (180) calendardays afterthe
effective date of this Franchise, and an updated inventory report shall be provided
by December 31 of each year and within thirty (30) calendar days of a reasonable
request by the City. The inventory report shall include a route map of those basic
portions of the fiber system that are located within the Right-of-Way and be in a
digital format. The inventory report shall include the vertical and horizontal
location of the facilities, including the height from the bottom of the pole to the
fiber or depth below the finished surface. The format of the data for overlaying on
the City's GIS mapping system shall utilize NAD 83 HARN State Plane as the
horizontal datum.
7.3 Inspection. All books, records, maps, and other documents maintained by
Franchisee with respect to its Facilities within the Rights-of-Way shall be made
available for inspection by the City at reasonable times and intervals; except that
nothing in this Section 7.3 shall be construed to require Franchisee to violate state
or federal law regarding customer privacy, nor shall this Section 7.3 be construed
to require Franchisee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature, Unless otherwise
permitted or required by State or federal law, nothing in this Section 7.3 shall be
construed as permission to withhold relevant customer data from the City that the
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City of Kenf - EXTENET SYSTEMS, INC
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b
City requests in conjunction with a tax audit or review; provided, however,
Franchisee may redact identifying information such as names, street addresses
(excluding City and zip code), Social Security Numbers, or Employer Identification
Numbers related to any confidentiality agreements Franchisee has with third
parties.
7.4 Public Records Act.
a. Franchisee acknowledges that information submitted to the City is
subject to the Washington Public Records Act, chapter 42.56 RCW, and
is open to public inspection, subject to any exceptions permitted by
law (i.e., unless an exemption applies).
b. Franchisee may identify documents submitted to the City that
Franchisee believes are non-disclosable, such as trade secrets.
Franchisee shall be responsible for clearly and conspicuously
identifying the work as confidential or proprietary, and shall provide a
brief written explanation as to why such information is confidential and
how it may be treated as such under State or federal law. The City
agrees to keep confidential any proprietary or confidential books or
records to the extent permitted by law.
c, If the City receives a public records request under chapter 42.56 RCW
or similar law for the disclosure of the documents or any part of the
documents Franchisee has designated as confidential, trade secret, or
proprietary, the City shall provide Franchisee with written notice of the
request, including a copy of the request prior to disclosure so that
Franchisee can take appropriate steps to protect its interests. Nothing
in this Section 7.4 prohibits the City from complying with chapter
42.56 RCW or any other applicable law or court order requiring the
release of public records, and the City shall not be liable to Franchisee
for compliance with any law or court order requiring the release of
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City of Kenf - EXTENET SYSTEMS, fNC
2020 Franchise Agreement
public records. The city will not asseft an exemption from disclosure
or production on Franchisee's behalf.
The city shall comply with any injunction or court order obtained by
Franchisee that prohibits the disclosure of any such confidential
records. If a higher court overturns an injunction or court order and
such higher couft action is or has become final and non-appealable,
Franchisee shall reimburse the city for any fines or penalties imposed
for failure to disclose such records within forty-five (45) days of a
request from the City, unless additional time is reasonably necessary
under the circumstances and is agreed to by the parties.
7.5 Annual Audit. On an annual basis, upon thirty (30) calendar days prior
written notice, the City shall have the right to conduct an independent audit of
Franchisee's records reasonably related to the administration or enforcement of this
Franchise, in accordance with GAAP. If the audit shows that tax or fee payments
have been underpaid by three percent (3Vo) or more, Franchisee shall pay the total
cost of the audit.
SECTION 8. - Unauthorized Facillties. Any Facilities installed in the City
Right-of-Way that were not authorized under this Franchise or other required City
Approval ("unauthorized Facilities") will be subject to the payment of an
Unauthorized Facilities charge by Franchisee. City shall provide written notice to
Franchisee of any Unauthorized Facilities identified by City staff and Franchisee
shall have thifty (30) calendar days thereafter in which to establish that this
installation was authorized or obtain the applicable permit. Failure to establish that
the installation is authorized will result in the imposition of an Unauthorized
Facilities charge in the amount of one Thousand Dollars ($1,000.00) per
Unauthorized Facility per day starting on the thirty-first (3lst) day. Franchisee may
submit an application to the City under this Franchise for approval of the
Unauthorized Facilities. If the application for the Unauthorized Facilities is not
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2O2O Franchise Agreement
d
approved, Franchisee shall remove the Unauthorized Facilities from the City's Right-
of-Way within thirty (30) calendar days after the expiration of all appeal periods for
such denial. The City shall not refund any Unauthorized Facilities charges, unless
Franchisee is successful in an appeal. This Franchise remedy is in addition to any
other remedy available to the City at law or equity.
ECTION 9. - Work in the Rights-of-Wav.
9.1 During any period of relocation, construction or maintenance, all work
performed by Franchisee or its contractors shall be accomplished in a safe and
workmanlike manner and only after obtaining permits pursuant to Section 9.3.
Franchisee shall minimize inteference with the free passage of traffic and the free
use of adjoining property, whether public or private. Franchisee shall at all times
post and maintain proper traffic control to warn and direct the road users. Traffic
control devices include but are not limited to barricades, traffic cones, traffic drums,
tubular markers, flags, certified flaggers, lights, flares, and other measures as
required for the safety of all members of the general public. Franchisee shall also
comply with all applicable safety regulations during such period of construction as
required by the ordinances of the City or the laws of the State of Washington,
including RCW 39.04.180 for the requirement of trench safety systems for trench
excavations.
9.2 Franchisee shall, at its own expense. maintain its Facilities in a safe
condition, in good repair, and in a manner suitable to the City. Additionally,
Franchisee shall keep its Facilities free of debris and anything of a dangerous,
noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or any intederence with City services. The provisions of this Section 9
shall survive the expiration of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way.
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9.3 Whenever Franchisee shall commence work in any public Rights-of-Way for
the purpose of excavation, installation, construction, repair, maintenance, or
relocation of its cable or equipment, it shall apply to the City for a permit to do so
and, in addition, shall give the City at least ten (10) working days prior notice of its
intent to commence work in the Rights-of-Way. All work by Franchisee in the area
shall be pedormed in accordance with applicable City standards and specifications
and warranted for a period of two (2) years, normal wear and tear excepted. In no
case shall any work commence within any Rights-of-Way without a permit, except
as otherwise provided in this Franchise.
9.4 If either the City or Franchisee plans to make excavations in any area
covered by this Franchise and as described in this Section 9.4, the party planning
such excavation shall afford the other, an opportunity to share such excavation,
PROVIDED THAT:
a. The joint use shall not unreasonably delay the work of the party
causing the excavation to be made;
b. The joint use shall be arranged and accomplished on terms and
conditions satisfactory to both parties; and
c. The initiating party may deny such request for safety reasons.
9.5 Except for emergency situations, Franchisee shall give at least seven (7)
days' prior written notice of intended construction to residents within 100 feet of
the construction area. This notice shall contain the dates, contact number, nature
and location of the work to be performed; a door hanger is permissible. At least
twenty-four Qil hours prior to entering private property or streets or public
easements adjacent to or on such private property, Franchisee shall physically post
a notice on the property indicating the nature and location of the work to be
performed; a door hanger is permissible. Nothing in this Franchise gives the
Franchisee the right to enter onto private property without the permission of the
private property owner.
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2020 Franchise Agreement
9.6 Franchisee shall make a good faith effort to comply with the property
owner/resident's preferences, if any, on location or placement of underground
installations (excluding aerial cable lines utilizing existing poles and existing cable
paths), consistent with sound engineering practices. Following performance of the
work, Franchisee shall restore the private property as nearly as possible to its
condition prior to construction, except for any change in condition not caused by
Franchisee. Any disturbance of landscaping, fencing, or other improvements on
private property caused by Franchisee's work shall, at the sole expense of
Franchisee, be promptly repaired and restored to the reasonable satisfaction of the
property owner/resident.
9.7 Franchisee shall at all times comply with the safety requirements contained
in Section 72 and all applicable federal, State and local safety requirements.
9'8 Upon prior written notice from the City, Franchisee shall meet with the City
and other franchise holders to schedule and coordinate construction in the Rights-
of-Way. To minimize public inconvenience, disruption or damage, the Franchisee
shall coordinate all construction locations, activities, and schedules as directed by
the City.
9.9 Franchisee acknowledges that it shall be solely responsible for compliance
with all applicable marking and lighting requirements of the FAA and the FCC with
respect to Franchisee's Facilities. Franchisee shall indemnify and hold the City
harmless from any fines or other liabilities caused by Franchisee's failure to comply
with these requirements. Should Franchisee or the City be cited by either the FCC
or the FM because the Facilities or Franchisee's equipment is not in compliance and
should Franchisee fail to cure the conditions of noncompliance within the timeframe
allowed by the citing agency, the City may elect any or all of the following
remedies: (1) cure the conditions of noncompliance at Franchisee's expense, and
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collect all reasonable costs from Franchisee in accordance with the provisions of
Section 17.3 and Section 77.4; (2) collect damages pursuant to Section 23.2; and
(3) revoke this Franchise pursuant to Section 24. Franchisee shall not be liable for
any claims, damages or liability resulting from City's acts in effecting the cure on
behalf of Franchisee.
SECTION 70. - Trees.
10.1 Franchisee may trim trees upon and overhanging on public ways, streets,
alleys, sidewalks, and other public places of the City so as to prevent the branches
of any such trees from coming in contact with Franchisee's Facilities. The right to
trim trees in this Section 10.1 only applies to the extent necessary to protect above
ground Facilities. Franchisee shall ensure that its tree trimming activities protect
the appearance, integrity, and health of the trees to the extent reasonably possible.
Franchisee shall be responsible for all debris removal from such activities.
LA.2 Upon written request of the Director, Franchisee shall prepare and maintain a
tree trimming schedule to ensure compliance with this Section 10,2 and to avoid
exigent circumstances where tree cutting, trimming, ot removal is necessary to
protect the public safety or continuity of service. Franchisee shall submit the tree
trimming schedule to the Dlrector. Franchisee shall notify and obtain written
approval from the City, which shall not be unreasonably withheld, delayed or
conditioned, before completing any trimming, except in an emergency.
10.3 All tree trimming shall be completed at the expense of Franchisee.
Franchisee may contract for such services, however, City approval is required prior
to commencing such trimming, which shall not be unreasonably withheld, delayed
or conditioned, Nothing in this Franchise grants Franchisee any authority to act on
behalf of the City, to enter upon any private property, or to trim any tree or natural
growth not owned by the City. Franchisee shall be solely responsible and liable for
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any damage to any third parties' trees or natural growth caused by Franchisee's
actions. Franchisee shall indemnify, defend and hold harmless the City from claims
of any nature arising out of any act or negligence of Franchisee with regard to tree
and/or natural growth trimming, damage, andlor removal. Franchisee shall
reasonably compensate the City or the property owner for any damage caused by
trimming, damage, or removal by Franchisee, Except in an emergency, all tree
trimming must be performed under the direction of an arborist certified by the
International Society of Arboriculture, unless otherwise approved by the Director.
SECTION 77. - One Call Locator Servlce, Prior to doing any work in the
Rights-of-Way, the Franchisee shall follow established procedures, including
contacting the Utility Notification Center in Washington and comply with all
applicable State statutes regarding the One Call Locator Service pursuant to
chapter L9.L22 RCW. The City shall not be liable for any damages to Franchisee's
Facilities or for interruptions in service to Franchisee's customers that are a direct
result of Franchisee's failure to accurately locate its Facilities within the prescribed
time limits and guidelines established by the One Call Locator Service regardless of
whether the City issued a permit.
SECTION 72, - Safet r R:eqglrements.
Lz.I Franchisee shall, at all times, employ professional care and shall install and
maintain and use industry-standard methods for preventing failures and accidents
that are likely to cause damage, injuries, or nuisances to the public. All structures
and all lines, equipment, and connections in, over, under, and upon the Rights-of-
Ways, wherever situated or located, shall at all times be kept and maintained in a
safe condition. Franchisee shall comply with all applicable federal, State, and City
safety requirements, rules, regulations, laws, and practices, and employ all
necessary devices as required by applicable law during the construction, operation,
maintenance, upgrade, repair, or removal of its Facilities. By way of illustration and
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not limitation, Franchisee shall also comply with the applicable provisions of the
National Electric Code, National Electrical Safety Code, FCC regulations, and
Occupational Safety and Health Administration (OSHA) Standards. Upon
reasonable notice to Franchisee, the City reserves the general right to inspect the
Facilities to evaluate if they are constructed and maintained in a safe condition.
L2-2 If an unsafe condition or a violation of Section 12.1 is found to exist, and
becomes known to the City, the City agrees to give Franchisee written notice of any
such condition and afford Franchisee a reasonable opportunity to repair the
condition. If Franchisee fails to start to make the necessary repairs and alterations
within a reasonable time frame specified in such notice (and pursue the cure to
completion), then the City may make such repairs or contract for them to be made.
All costs, including administrative costs, incurred by the City in repairing any unsafe
conditions shall be borne by Franchisee and reimbursed to the City pursuant to
Section 17.3 and Section 17.4.
L2.3 Additional safety standards include:
a. Franchisee shall endeavor to maintain all equipment tines and facilities
in an orderly manner, including, but not limited to, the removal of all
bundles of unused cable.
b. All installations of equipment, lines, and ancillary facilities shall be
installed in accordance with industry-standard engineering practices
and shall comply with all federal, State, and local regulations,
ordinances, and laws.
c. The Franchisee shall protect any opening or obstruction in the Rights-
of-Way or other public places made by Franchisee in the course of its
operations with adequate barriers, fences, or boarding, the bounds of
which, during periods of dusk and darkness, shall be clearly marked
and visible at night.
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SECTION 73. - Work of Contractors and Subcontractors, Franchisee's
contractors and subcontractors shall be licensed and bonded in accordance with
State law and the City's ordinances, regulations, and requirements. Work by
contractors and subcontractors is subject to the same restrictions, limitations, and
conditions as if the work were performed by Franchisee. Franchisee shall be
responsible for all work performed by its contractors and subcontractors and others
performing work on its behalf as if the work were performed by Franchisee and
shall ensure that all such work is per.formed in compliance with this Franchise and
applicable laws.
ECTION 74. - Provision of Conduit and DarR Fiber.
L4.I The City may request that Franchisee provide the City with a single inch and
a quarter (7.25") conduit, and related structures necessary to access the conduit
pursuant to RCW 35.99.070 in one or more of the locations where Franchisee
constructs, installs or relocates Facilities underground. If requested by the City,
such conduit shall be provided at Franchisee's incremental cost for providing the
conduit and shall only be used for the City's own internal use and shall not be
resold, leased, exchanged to any third party. Franchise shall install a tocator wire
and cap off all conduit ends. Conduit ends shall be marked on the as-built plans
and maps required in Section 7. Any conduit delivered to the City pursuant to this
Section will become property of the City, and Franchisee will have no ongoing
maintenance, liability or other obligations to the City or any third party with respect
to such conduit. Should City request any conduit as contemplated in this Section,
City must make the request in writing prior to issuance of the permit to Franchisee
and the parties will negotiate a separate agreement.
L4.2 Except in emergency situations, Franchisee shall provide the Director with at
least thirty (30) days' advance written notice of any construction, relocation, or
placement of ducts or conduits in the Rights-of-Way and provide the City an
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opportunity to request that Franchisee provide the City with additional duct or
conduit, and related structures necessary to access the conduit pursuant to RCW
35.99'070. This notification shall be in addition to the requirement to apply for and
obtain permits pursuant to Section 9.3.
ECTION 75. - Restoration aftar Construcfion,
15.1 Franchisee shall repair any damage to the Rights-of-Way, and the propefty of
any third PartY, after installation, construction, relocation, maintenance, or repair of
its Facilities or after abandonment approved pursuant to Section 21, within thirty
(30) days following the date of any of these activities at Franchisee's sole cost and
expense. Franchisee shall restore the Rights-of-Way and the surface of the Rights-
of-Way to the same or better condition as it was immediately prior to any
installation, construction, relocation, maintenance or repair by Franchisee.
Franchisee shall not be responsible for any changes to the Rights-of-Way not
caused by Franchisee or anyone doing work for Franchisee, No survey monument
may be removed (or replaced) without a professional land surveyor obtaining a
permit in advance from the Washington State Department of Natural Resources and
submitting a copy of the approved permit to the City. Franchisee shall restore all
concrete encased monuments that will be disturbed or displaced by such work to
City standards and specifications. The Director shall have final approval of the
condition of the Rights-of-Way after repair or restoration by the Franchisee.
t5.2 Franchisee agrees to complete all restoration work to the Franchise Area or
other affected area at its sole costs and expense and according to the time and
terms specified in the construction permit issued by the City. Franchisee also
agrees to repair any damage caused by work to the Franchise Area within fourteen
(14) days unless otherwise approved by the Director. All work by Franchisee
pursuant to this Franchise shall be performed in accordance with applicable City
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standards and warranted for a period of two (2) years and for undiscovered defects
as is standard and customary for this type of work.
15.3 If conditions (e.9., weather) make the complete restoration required under
this Section 15 impracticable, Franchisee shall temporarily restore the affected
Right-of-Way or propefty at its sole cost and expense, Franchisee shall promptly
undertake and complete the required permanent restoration as soon as conditions
no longer make such permanent restoration impracticable.
I5.4 If Franchisee does not repair a Right-of-Way or an improvement in or to a
Right-of-Way within the time prescribed by this Section 15, the City may repair the
damage and shall be reimbursed its actual cost within sixty (60) days of submitting
an itemized invoice to Franchisee in accordance with the provisions of Section 17.3
and Section L7.4. The City may also bill Franchisee for any expenses associated
with the inspection of such restoration work.
15.5 The provisions of this Section 15 shall survive the expiration or termination
of this Franchise so long as Franchisee continues to have Facilities in the Rights-of-
Way and has not completed all restoration to the City's standards.
SECTION ,.6, - Emeroencies,
16.1 In the event of any emergency in which any of Franchisee's Facilities located
in or under any street endangers the property, life, health, or safety of any person,
entity or the City, or if Franchisee's construction area is otherwise in such a
condition as to immediately endanger the property, life, health, or safety of any
person, entity or the City, Franchisee shall immediately repair its Facilities and cure
or remedy the dangerous conditlons for the protection of property, life, health, or
safety of any person, entity or the City, without first applying for and obtaining a
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permit as required by this Franchise. The Franchisee shall apply for any necessary
permits on the next day Kent City Hall is open for business.
t6.2 Whenever the construction, installation, or excavation of Facilities authorized
by this Franchise has caused or contributed to a condition that appears to
substantially impair the lateral support of the adjoining street or public place, an
adjoining public place, street utilities, city property, Rights-of-way, or private
property (collectively "Endangered Property") or endangers the public, the Director
may direct Franchisee, at Franchisee's own expense, to take reasonable action to
protect the Endangered Property or the public within a prescribed time. If
Franchisee fails or refuses to promptly take the actions directed by the City, or fails
to fully comply with such directions, or if an emergency situation exists that
requires immediate action before the City can timely contact Franchisee to request
Franchisee effect the immediate repair, the City may enter upon the Endangered
Propefty and take such reasonable actions as are necessary to protect the
Endangered Property or the public. Franchisee shall be liable to the City for the
costs of any such repairs in accordance with the provisions of Sections t7.3 and
L7.4.
16.3 The City shall not be liable for any damage to or loss of Facilities within the
Rights-of-Way as a result of or in connection with any public works, public
improvements, construction, grading, excavation, filling, or work of any kind in the
Rights-of-Way by or on behalf of the City, unless directly and proximately caused
by the negligence or willful acts of the City, its employees, contractors, or agents.
The City shall further not be liable to Franchisee for any direct, indirect, or any
other such damages suffered by any person or entity of any type as a direct or
indirect result of the City's actions under this Section 16 unless caused by the
negligence or willful acts of the city, its employees, contractors, or agents,
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L6.4 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section L7.3 and Section L7.4 for any and all costs the City
reasonably incurs in response to any emergency situation involving Franchisee's
Facilities, to the extent said emergency is not the fault of the City. The City agrees
to simultaneously seek reimbursement from any franchisee or permit holder who
caused or contributed to the emergency situation.
ECTfON 77t - Recovery of CosE.
L7.L Franchisee shall reimburse the City for its actual and documented
administrative, legal, and other costs incurred in drafting and processing this
Franchise and all work related thereto pursuant to RCW 35.21.960(1Xb), in an
amount not to exceed $6,000.00. No construction permits shall be issued for the
installation of Facilities authorized until the City has received this reimbursement.
L7 '2 Franchisee shall further be subject to all permit fees associated with activities
undertaken through the authority granted in this Franchise or under the laws of the
City. Where the City incurs costs and expenses for review, inspection, or
supervision of activities, including but not limited to reasonable fees associated with
attorneys, consultants, City Staff and City Attorney time, undertaken through the
authority granted in this Franchise or any ordinances relating to the subject for
which a permit fee is not established, Franchisee shall pay such costs and expenses
directly to the city in accordance with the provisions of section 17,3.
L7.3 Franchisee shall reimburse the City within sixty (60) days of submittal by the
City of an itemized billing for reasonably incurred costs, itemized by project, for
Franchisee's proportionate share of all actual, identified expenses incurred by the
City in planning, constructing, installing, repairing, altering, or maintaining any City
facility as the result of the presence of Franchisee's Facilities in the Rights-of-Way.
Such costs and expenses shall include but not be limited to Franchiseet
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proportionate cost of City personnel assigned to oversee or engage in any work in
the Rights-of-Way as the result of the presence of Franchisee's Facilities in the
Rights-of-Way. Such costs and expenses shall also include Franchisee's
propoftionate share of any time spent reviewing construction plans in order to
either accomplish the relocation of Franchisee's Facilities or the routing or rerouting
of any utilities so as not to interfere with Franchisee's Facilities.
L7 '4 The time of City employees shall be charged at their respective rate of
salary, including overtime if applicable, plus benefits and reasonable overhead. Any
other costs will be billed proportionately on an actual cost basis. All billings will be
itemized so as to specifically identify the costs and expenses for each project for
which the City claims reimbursement. A charge for the actual costs incurred in
preparing the billing may also be included in the billing, At the City's option, the
billing may be on an annual basis, but the City shall provide the Franchisee with the
City's itemization of costs, in writing, at the conclusion of each project for
information purposes.
SECTION 7$ - City's Reservation of Riohts,
18.1 Franchisee represents that its Services, as authorized under this Franchise,
are a telephone business as defined in RCW 82.16.010, or that it is a service
provider as used in RCW 35.21.860 and defined in RCW 35.99.010. As a result, the
City will not impose franchise fees under the terms of this Franchise. The City
reserves its right to impose a franchise fee on Franchisee if Franchisee's Services as
authorized by this Franchise change such that the statutory prohibitions of RCW
35.21.860 no longer apply or if statutory prohibitions on the imposition of such fees
are otherwise removed. The City also reserves its right to require that Franchisee
obtain a separate franchise for a change in use, which franchise may include
provisions intended to regulate Franchisee's operations as allowed under applicable
law. Nothing contained within this Franchise shall preclude Franchisee from
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challenging any fee, this Franchise, or separate agreement under applicable federal,
State, or local laws.
t8'2 Franchisee acknowledges that certain of its operations within the City may
constitute a telephone business subject to the utility tax imposed pursuant to
chapter 3,18, Kent City Code, Franchisee understands that RCW 35.21.g70
currently limits the rate of city tax upon telephone business activities to six percent
(60/o) of gross income (as that term is defined in chapter 3.18, Kent City Code),
unless a higher rate is otherwise approved. Franchisee stipulates and agrees that
certain of its business activities may be subject to taxation as a telephone business
and that Franchisee shall pay to the City the rate applicable to such taxable
seruices under chapter 3.18, Kent City Code, and consistent with state and federal
law. The parties agree however, that nothing in this Franchise shall limit the City's
power of taxation as may exist now or as later imposed by the City. This provision
does not limit the City's power to amend chapter 3.18, Kent City Code as may be
permitted by law. Nothing in this Section 18 is intended to alter, amend, modify or
expand the taxes and fees that may lawfully be assessed on Verizon's business
activities under this franchise under applicable law,
SECTION 19. - Indemnlfication: Llabilifri.,
19.1 General Indemnification. Franchisee shall indemnify, defend, and hold the
city, its officers, officials, boards, commissions, agents, and employees, harmless
from any action or claim for injury, damage, loss, liability, cost or expense,
including coutt and appeal costs and reasonable attorneys' fees or reasonable
expenses, arising from any casualty or accident to Person or property, including,
without limitation, damages in any way arising out of, or by reason of, any
construction, excavation, operation, maintenance, reconstruction, or any other act
done under this Franchise, by or for Franchisee, its agents, or its employees, or by
reason of any neglect or omission of Franchisee, Franchisee shall consult and
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cooperate with the City while conducting its defense of the City under this
Franchise. Franchisee shall not be obligated to indemnify the City to the extent of
the City's negligence or willful misconduct.
79.2 Indemnification for Relocation. Franchisee shall defend, indemnify, and hold
the City harmless for any damages, claims, additional costs or reasonable expenses
and attorneys' fees, including contractor construction delay damages, assessed
against or payable by the City and arising out of or resulting from Franchisee's
negligence or willful misconduct contributing to Franchisee's failure to remove,
adjust, or relocate any of its Facilities in the Rights-of-Way in accordance with any
relocation required by the City, provided that Franchisee shall not be liable under
this section in the event Franchiseet failure to remove, adjust or relocate any of its
Facilities is the result of a force majeure event or events beyond the control of
Franchisee.
19.3 Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly notify Franchisee of such claim or action and
tender the defense of the claim or action to Franchisee, which defense shall be at
Franchisee's expense. The City's failure to so notify and request indemnification
shall not relieve Franchisee of any liability that Franchisee might have, except to
the extent that such failure prejudice Franchisee's ability to defend such claim or
suit. The City may participate in the defense of a claim, but if Franchisee provides
a defense at Franchiseet expense then Franchisee shall not be liable for any
attorneys' fees, expenses, or other costs the City may incur if it chooses to
pafticipate in the defense of a claim, unless and until separate representation as
described in Section 19.5 is required. In that event, the provisions of Section 19.5
shall govern Franchisee's responsibility for City's attorney's fees, expenses, or other
costs. In any event, Franchisee may not agree to any settlement of claims
affecting the City without the City's consent, such consent not to be unreasonable
withheld or delayed.
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L9.4 Avoidance.
a. Inspection or acceptance by the city of any work performed by
Franchisee at the time of completion of construction shall not be
grounds for avoidance by Franchisee of any of its obligations under
this Section 19.
b. The fact that Franchisee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of
or defense to Franchisee's duty of defense and indemnification under
this subsection.
19.5 Expenses. If separate representation to fully protect the interests of both
parties is or becomes necessary, such as a conflict of interest between the City and
the counsel selected by Franchisee to represent the City, Franchisee shall pay, from
the date such separate representation is required forward, all reasonable expenses
incurred by the City in defending itself with regard to any action, suit, or proceeding
subject to indemnification by Franchisee. Provided, however, that in the event that
such separate representation is or becomes necessary, and the City desires to hire
counsel or any other outside experts or consultants and desires Franchisee to pay
those expenses, then the City shall be required to obtain Franchisee's consent to
the engagement of such counsel, experts, or consultants, such consent not to be
unreasonably withheld, The City's expenses shall include all reasonable
out-of-pocket costs and expenses, such as consultants' fees and court costs, but
shall not include outside attorneys' fees for services that are unnecessarily
duplicative of seruices provided the City by Franchisee, except in the event of a
conflict of interest where such duplication may be required. Each party agrees to
cooperate and to cause its employees and agents to cooperate with the other party
in the defense of any claim or action.
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19'6 RCW 4.24.1.15. The parties acknowledge that this Franchise is subject to
RCW 4.24.115. Accordingly, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of Franchisee and the City, its officers, officials, employees,
and volunteers, Franchisee's liability shall be only to the extent of Franchisee's
negligence. It is further specifically and expressly understood that the
indemnification provided constitutes Franchisee's waiver of immunity under Title 51
RCW, solely for the purposes of this indemnification. This waiver has been mutually
negotiated by the parties.
L9.7 Survival. The provisions of this Section 19 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 20. - fnglge4ge.
20.L Policies. Franchisee shall maintain in full force and effect at its own cost and
expense each of the following policies of insurance:
a. Commercial General Liability insurance with limits of no less than
$5,000,000 per occurrence and 95,000,000 general aggregate,
Coverage shall be at least as broad as that provided by ISO CG 00 01
t/96 or its equivalent and include severability of interests. Such
insurance shall name the City, its officers, officials and employees as
additional insureds per ISO CG 2026 or its equivalent. There shall be
a waiver of subrogation and rights of recovery against the City, its
officers, officials and employees. Coverage shall apply as to claims
between insureds on the policy, if applicable. Coverage may take the
form of a primary layer and a secondary or umbrella layer, but the
combination of layers must equal 95,000,000 at a minimum.
b. Commercial Automobile Liability insurance with minimum combined
single limits of $5,000,000.00 each occurrence with respect to each of
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c.
Franchisee's owned, hired and non-owned vehicles assigned to or used
in the operation of the Facilities in the city, The policy shall contain a
severability of interests provision.
workers' compensation coverage as required by the Industrial
Insurance laws of the state of washington and employer's liability with
a limit of $1,000,000 each accident/disease/policy limit.
20.2 Deduclibles/Certificate of Insurance. Any deductible of the policies shall not
in any way limit Franchisee's liability to the City.
20.3 Requirements. All policies shall contain, or shall be endorsed so that:
a. The city, its officers, officials, boards, commissions, emproyees, and
agents are to be covered ds, and have the rights of, additional
insureds with respect to liability arising out of activities peformed by,
or on behalf of, Franchisee under this Franchise or Applicable Law, or
in the construction, operation or repair, or ownership of the Cable
System;
b. Franchisee's insurance coverage shall be primary insurance with
respect to the City, its officers, officials, boards, commissions,
employees, and agents. Any insurance or self-insurance maintained
by the City, its officers, officials, boards, commissions, employees, and
agents shall be in excess of the Franchisee's insurance and shall not
contribute to it; and
c. Franchisee's insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to the
limits of the insurer's liability.
2A.4 Aqceotability of Insurers. The insurance obtained by Franchisee shall be
placed with insurers with a Best's rating of no less than "A VII."
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20.5 Verification of Coverage. The Franchisee shall furnish the City with
certificates of insurance and endorsements or a copy of the page of the policy
reflecting blanket additional insured status. The certificates and endorsements for
each insurance policy are to be signed by a Person authorized by that insurer to
bind coverage on its behalf. The certificates and endorsements for each insurance
policy are to be on standard forms or such forms as are consistent with standard
industry practices.
20.6 Maintenance of Insurance. Franchisee's maintenance of insurance as
required by this Section 20 shall not be construed to limit the liability of Franchisee
to the coverage provided by such insurance, or otherwise limit the City's recourse
to any remedy available at law or equity. Fufther, Franchisee's maintenance of
insurance policies required by this Franchise shall not be construed to excuse
unfaithful performance by Franchisee.
SECTION 27, - Abtndonment of Franchisee's Telecommunications
Network' Upon the expiration, termination, or revocation of the rights granted
under this Franchise, Franchisee shall remove all of its Facilities from the Rights-of-
Way within thitty (30) days of receiving written notice from the Director. The
Facilities, in whole or in part, may not be abandoned by Franchisee without written
approval by the City. Any plan for abandonment or removal of Franchisee's
Facilities must be first approved by the Director, and all necessary permits must be
obtained prior to this work. The plan for abandonment shall include a proposal and
instruments for transferring ownership to the City. Any Facilities that are not
permitted to be abandoned in place and that are not removed within thirty (30)
days of receipt of City's notice shall automatically become the property of the City.
Except that nothing contained within this Section 21 shall prevent the City from
compelling Franchisee to remove any such Facilities through judicial action when
the City has not permitted the Franchisee to abandon the Facilities in place. The
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provisions of this Section 2t shall survive the expiration, revocation, or termination
of this Franchise.
SECTION 22. - Bonds.
22.L Construction Guarantee. As a condition of performing work in the Right-of-
Way, the timely, complete, and faithful performance of all construction work in the
Right-of-Way shall be guaranteed in an amount equal to one hundred twenty five
percent (L25o/o) of the cost estimate (prepared by a licensed contractor,
professional engineer, or architect) of the construction work, bV either the
Franchisee or the Franchiseet contractor performing the actual construction work.
The guarantee may be by performance bond or irrevocable letter of credit, or cash
deposit, as may be determined by the Franchisee or the Franchisee's contractor, If
Franchisee, in the sole judgment of the City, has a history of corrections or
defaults, Franchisee must provide the full guarantee by assignment of funds. These
funds shall guarantee the following: (1) timely completion of construction; (Z)
construction in compliance with all applicable plans, permits, technical codes, and
standards; (3) proper location of the Facilities as specified by the City; (4)
restoration of the Rights-of-Way and other City properties affected by the
construction; (5) submission of as-built drawings after completion of construction;
and (6) timely payment and satisfaction of all claims, demands, or tiens for labor,
materials, or services provided in connection with the work that could be asserted
against the City or City property. The guarantee must remain in full force until the
completion of construction, including final inspection, corrections, and final approval
of the work, recording of all easements, provision of as-built drawings, and the
posting of a maintenance guarantee as described in Section 22.2. Compliance with
the petformance guarantee requirement of the City's current Design and
construction standards shall satisfy the provisions of this Section 22.L.
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22-2 Maintenance Guarantee. Maintenance and the successful operation of the
Right-of-Way improvements shall be bonded for a period of at least two (2) years
(or other period as required by Kent City Code) from the date of final construction
approval. The bond shall be in an amount to be determined by the City. The
minimum maintenance guarantee shall be Five Thousand Dollars (g5,000,00) or
twenty percent (2oo/o) of the original performance construction guarantee as
described in Section 22.L, whichever is greater. At six (6)-month intervals during
this maintenance period, the City will inspect the improvements and identify to
Franchisee any noted deficiencies. Franchisee will have thirty (30) days to correct
any deficiencies. The satisfactory correction of the work may commence a new two
(2)-year maintenance period for the improvements as corrected, as determined by
the City. The City will initiate collection against the financial guarantee if
deficiencies are not satisfactorily addressed by the end of the thirty (30)-day
response period. Compliance with the maintenance guarantee requirement of the
City's current Design and Construction Standards shall satisfy the provisions of this
Section 22.2. Original financial guarantee amounts described in Section 22.L and
this Section22.2 may be reduced one time only priorto the maintenance period, at
the discretion of the City. If an extension to any associated permits are granted,
the financial guarantees may be increased based on an updated engineer's cost
estimate or as determined by the City. Financial guarantees will be fully released
only after all final punchlist items are accomplished, final construction approval, and
the elapse of the two (2)-year maintenance guarantee period with all corrective
actions complete and accepted by the City.
22.3 Franchise Bond. Franchisee shall provide City with a bond in the amount of
Twenty-Five Thousand Dollars ($25,000.00) ("Franchise Bond") running or
renewable for the term of this Franchise, in a form and substance reasonably
acceptable to City. If Franchisee fails to substantialty comply with any one or more
of the provisions of this Franchise, following written notice and a reasonable
opportunity to cure, then there shall be recovered jointly and severally from
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City of Kenf - EXTENET SYSTEMS, INC
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Franchisee and the bond any actual damages suffered by City as a result thereof,
including but not limited to staff time, material and equipment costs, compensation
or indemnification of third parties, and the cost of removal or abandonment of
Facilities. Franchisee specifically agrees that its failure to comply with the terms of
this Section 22.4 will constitute a material breach of this Franchise, subject to the
notice and cure provisions of Section 23.2. Franchisee further agrees to replenish
the Franchise Bond within thirty (30) days after written notice from the City that
there is a deficiency in the amount of the Franchise Bond, The amount of the
Franchise Bond shall not be construed to limit Franchisee's liability or to limit the
City's recourse to any remedy to which the City is otherwise entitled at law or in
equity.
22.4 Form of Bonds. All bonds provided to the City under this Section 22 shall be
on forms provided by the City and with sureties registered with the Washington
State Insurance Commissioner or other financial institutions acceptable to the City.
SECTION 23. - Remedies to Enforce Compllance,
23.L In addition to any other remedy provided in this Franchise, the City reserves
the right to pursue any remedy available at law or in equity to compel or require
Franchisee and/or its successors and assigns to comply with the terms of this
Franchise. The pursuit of any right or remedy by the City shall not prevent the City
from thereafter declaring a revocation for breach of the conditions. In addition to
any other remedy provided in this Franchise, Franchisee reserves the right to
pursue any remedy available at law or in equity to compel or require the City, its
officers, employees, volunteers, contractors and other agents and representatives,
to comply with the terms of this Franchise, Further, all rights and remedies
provided in this Franchise shall be in addition to and cumulative with any and all
other rights and remedies available to either the City or Franchisee. Such rights
and remedies shall not be exclusive, and the exercise of one or more rights or
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2020 Franchise Agreement
remedies shall not be deemed a waiver of the right to exercise at the same time or
thereafter any other right or remedy. Provided, fufther, that by entering into this
Franchise, it is not the intention of the City or Franchisee to waive any other rights,
remedies, or obligations as provided by law, equity or otherwise, and nothing
contained in this Franchise shall be deemed or construed to effect any such waiver.
The pafties reserve the right to seek and obtain injunctive relief with respect to this
Franchise to the extent authorized by applicable law. The execution of this
Franchise shall not constitute a waiver or relinquishment of this right. The parties
agree that if a party obtains injunctive relief, neither party shall be required to post
a bond or other security and the parties agree not to seek the imposition of such a
requirement.
23.2 If either party violates or fails to comply with any of the provisions of this
Franchise or a permit issued as required by Section 9.3, or should it fail to heed or
comply with any notice given to such party under the provisions of this Franchise
(the "Defaulting Party"), the other party (the "Non-defaulting party,,) shall provide
the Defaulting Party with written notice specifying with reasonable particularity the
nature of any such breach and the Defaulting Party shall undertake all commercially
reasonable efforts to cure such breach within thirty (30) days of receipt of
notification. If the Non-defaulting Party reasonably determines the breach cannot
be cured within thirty (30) days, the Non-defaulting Party may speciff a longer cure
period, and condition the extension of time on the Defaulting Party's submittal of a
plan to cure the breach within the specified period, commencement of work within
the original thirty (30)-day cure period, and diligent prosecution of the work to
completion. If the breach is not cured within the specified time, or the Defaulting
Party does not comply with the specified conditions, the Non-Defaulting party may
pursue any available remedy at law or in equity as provided in Section 23.1, or in
the event Franchisee has failed to timely cure the breach, the City, at its sole
discretion, may elect to: (1) revoke this Franchise pursuant to Section Za; e) claim
damages of Two Hundred Fifty Dollars ($250.00) per day against Franchisee (and
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City of Kenf - EXTENET SYSTEMS, INC
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collect from the Franchise Bond if necessary); or (3) extend the time to cure the
breach if under the circumstances additional time is reasonably required.
SECTfON 24. - Revocatlon, If Franchisee willfully violates or fails to
comply with any material provisions of this Franchise, the City may revoke this
Franchise after (1) providing at least thirty (30) days'written notice to Franchisee
specifying the alleged violation or failure; and (2) holding a hearing before City
Council. This hearing shall be open to the public and Franchisee and other
interested parties may offer written and/or oral evidence explaining or mitigating
such alleged noncompliance. Within thirty (30) days after the hearing, the Kent
City Council, on the basis of the record, shall make the determination as to whether
there is cause for revocation, whether the Franchise will be terminated, or whether
lesser sanctions should otherwise be imposed. The Kent City Council may in its sole
discretion fix an additional time period to cure violations. If the deficiency has not
been cured at the expiration of any additional time period or if the Kent City Council
does not grant any additional period, the Kent City Council may by resolution
declare the Franchise to be revoked and forfeited or impose lesser sanctions. If
Franchisee appeals revocation and termination, such revocation may be held in
abeyance pending judicial review by a court of competent jurisdiction, provided
Franchisee is otherwise in compliance with the Franchise.
ECTION 25. - Non'Walver. The failure of either party to insist upon strict
performance of any of the covenants and agreements of this Franchise or to
exercise any option conferred in any one or more instances shall not be construed
to be a waiver or relinquishment of any such covenants, agreements, or option or
any other covenants, agreements or option.
ECTION 26. - Police Powers and Ctv Reaulations.. Nothing within this
Franchise shall be deemed to restrict the City's ability to adopt and enforce all
necessary and appropriate ordinances regulating the performance of the conditions
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City of Kenf - EXTENET SYSTEMS, INC
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of this Franchise, including any valid ordinance made in the exercise of its police
powers in the interest of public safety and for the welfare of the public. The City
shall have the authority at all times to reasonably control by appropriate
regulations,-consistent with 47 U.S.C. 5 253, the location, elevation, manner of
construction, and maintenance of any Facilities by Franchisee, and Franchisee shall
promptly conform with all such regulations, unless compliance would cause
Franchisee to violate other requirements of law. The City reserves the right to
promulgate any additional regulations of general applicability as it may find
necessary in the exercise of its lawful police powers consistent with 47 U.S.C. S
253' In the event of a conflict between the provisions of this Franchise and any
other ordinance(s) enacted under the City's police power authority, such other
ordinances(s) shall take precedence over this Franchise.
SECTION 27. - Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
sEcTroN 28. Acceptance. This Franchise may be accepted by
Franchisee by its filing with the City Clerk of an unconditional written acceptance,
within sixty (60) days from the City's execution of this Franchise, in the form
attached as Exhibit A. Failure of Franchisee to so accept this Franchise shall be
deemed a rejection by Franchisee and the rights and privileges granted shall cease.
In addition, Franchisee shall file the certificate of insurance and the additional
insured endorsements obtained pursuant to Section ZO, any construction
guarantees, if applicable, pursuant to Section 22.L, the Franchise Bond required
pursuant to section 22.3, and the costs described in section 17.1.
sEcrroil 29. surulval. Ail of the provisions, conditions, and
requirements of Section 5, Section 6, Section 9, Section 15, Section 19, Section 21,
and this Section 29 of this Franchise shalt be in addition to any and all other
obligations and liabilities Franchisee may have to the City at common law, by
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City of Kenf - EXTENET SYSTEMS, INC
2020 Franchise Agreement
statute, or by contract, and shall survive this Franchise, and any renewals or
extensions, to the extent provided for in those sections. All of the provisions,
conditions, regulations, and requirements contained in this Franchise shall further
be binding upon the successors, executors, administrators, legal representatives,
and assigns of Franchisee and all privileges, as well as all obligations and liabilities
of Franchisee shall inure to its successors and assigns equally as if they were
specifically mentioned where Franchisee is named.
sEcrroU 30, - Assignment an( chanoes of ownerchio or control.
30' 1 This Franchise may not be directly or indirectly assigned, transferred, or
disposed of by sale, lease, merger, consolidation or other act of Franchisee, by
operation of law or otherwise, unless approved in writing by the City, which
approval shall not be unreasonably withheld, conditioned or delayed. The above
notwithstanding, Franchisee may freely assign this Franchise in whole or in part to
a parent, subsidiary, or affiliated entity, unless there is a change of control as
described in Section 30.2 to an entity that does not have the similar or better
financial worth, as Franchisee, as of the date of such assignment or change
Franchisee shall provide prompt, written notice to the City of any such assignment.
In the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall not be
required unless and until the secured party elects to realize upon the collateral. For
purposes of this Section 30, no assignment or transfer of this Franchise shall be
deemed to occur based on the public trading of Franchisee's stock; provided,
however, any tender offer, merger, or similar transaction resulting in a change of
control shall be subject the provisions of this Franchise.
3O.2 Any transactions that singularly or collectively result in a change of more
than fifty percent (500/o) of the: ultimate ownership or working control of
Franchisee, ownership or working control of the Facilities, ownership or working
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City of Kent - EXTENET SYSTEMS, INC
2020 Franchise Agreement
control of affiliated entities having ownership or working control of Franchisee or of
the Facilities, or of control of the capacity or bandwidth of Franchisee's Facilities,
shall be considered an assignment or transfer requiring City approval. Transactions
between affiliated entities are not exempt from City approval if there is a change in
control as described in the preceding sentence. Franchisee shall prompfly notify
the City prior to any proposed change in, or transfer of, or acquisition by any other
pafty of control of Franchisee.
30'3 Franchisee may, without prior consent from the City: (1) lease the Facilities,
or any portion, to another person; (2) grant an indefeasible right of user interest in
the Facilities, or any portion, to another person; or (3) offer to provide capacity or
bandwidth in its Facilities to another person, provided further, that Franchisee shall
at all times retain exclusive control over its Facilities and remain fully responsible
for compliance with the terms of this Franchise. Franchisee's obligation to remain
fully responsible for compliance with the terms under this Section 30.3 shall survive
the expiration of this Franchise but only if and to the extent and for so long as
Franchisee is still the owner or has exclusive control over the Facilities used by a
third party.
SECTION 37. - Entlre Aoreement, This Franchise constitutes the entire
understanding and agreement between the parties as to the subject matter within
this Franchise and no other agreements or understandings, written or otherwise,
shall be binding upon the parties upon execution of this Franchise.
ECTION 32. - Eminent Dornain. The existence of this Franchise shall not
preclude the City from acquiring by condemnation in accordance with applicable
law, all or a poftion of Franchisee's Facilities for the fair market value. In
determining the value of such Facilities, no value shall be attributed to the right to
occupy the area conferred by this Franchise.
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2020 Franchise Agreement
sEcrroU 3?, - vacatlon. If at any time the city, by ordinance and in
accordance with applicable laws, vacates all or any portion of the area affected by
this Franchise, the City shall not be liable for any damages or loss to the Franchisee
by reason of such vacation. The City shall notify Franchisee in writing not less than
sixty (60) days before vacating all or any portion of any such area. The City will, if
practicable, reserve an easement for Franchisee's telecommunications network
under the same terms and conditions as this Franchise at the location vacated by
city, and if not practicable, the city may, after sixty (60) days' written notice to
Franchisee, terminate this Franchise with respect to such vacated area.
5ECTION 34. - Notice, Any notice or information required or permitted to
be given to the parties under this Franchise shall be sent to the following addresses
unless otherwise specified by personal delivery, overnight mail by a nationally
recognized courier, or by U.S. certified mail, return receipt requested and shall be
effective upon receipt or refusal of delivery:
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
Company Address:
EXTENET SYSTEMS, INC
Attn: CFO
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
With copy to General Counsel A COO at same address
Copy email to NOTlCE@extenetsystems.com
SECTION 35. - Severablll&. If any section, sentence, clause, or phrase of
this Franchise should be held to be invalid or unconstitutional by a court of
competent jurisdiction, such invalidity or unconstitutionality shall not affect the
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City of Kent - EXTENET SYSTEMS, INC
2020 Fra nch ise Agreement
validity or constitutionality of any other section, sentence, clause, or phrase of this
Franchise unless such invalidity or unconstitutionality materially alters the rights,
privileges, duties, or obligations, in which event either party may request
renegotiation of those remaining terms of this Franchise materially affected by such
court's ruling.
SECTION 3Q, - Comoliance with all Aoolicable Laws. Each party agrees
to comply with all present and future federal, state, and local laws, ordinances,
rules, and regulations. This Franchise is subject to ordinances of general
applicability enacted pursuant to the City's police powers. The City reserves the
right at any time to amend this Franchise to conform to any enacted, amended, or
adopted federal or state statute or regulation relating to the public health, safety,
and welfare, or relating to roadway regulation, or a City ordinance enacted
pursuant to such federal or state statute or regulation, when such statute,
regulation, or ordinance necessitates this Franchise be amended in order to remain
in compliance with applicable laws, but only upon providing Franchisee with thirty
(30) days' written notice of its action setting forth the full text of the amendment
and identifying the statute, regulation, or ordinance requiring the amendment. This
amendment shall become automatically effective upon expiration of the notice
period unless, before expiration of that period, Franchisee makes a written request
for negotiations regarding the terms of the amendment. If the parties do not reach
agreement as to the terms of the amendment within thirty (30) days of the call for
negotiations, either party may pursue any available remedies at law or in equity.
Nothing shall preclude either party from challenging the lawfulness of any provision
of this Franchise under state or federal law.
SECTION 37. - Attornev's Fees. If a suit or other action is instituted in
connection with any controversy arising out of this Franchise, each party shall pay
all its legal costs and attorney fees incurred in defending or bringing such claim or
lawsuit, including all appeals, in addition to any other recovery or award provided
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City of Kenf - EXTENET SYSTEMS, INC
2020 Franchise Agreement
by law; except that nothing in this section shall be construed to limit the City's right
to indemnification under Section 19 of this Franchise.
SECTIQN 38. - Hazardous Sub$tances. Franchisee shall not introduce or
use any hazardous substances (chemical or waste), in violation of any applicable
law or regulation, nor shall Franchisee allow any of its agents, contractors, or any
person under its control to do the same. Franchisee will be solely responsible for
and will defend, indemnify, and hold the City, its officers, officials, employees,
agents, and volunteers harmless from and against any and all claims, costs, and
liabilities including reasonable attorney fees and costs, arising out of or in
connection with the cleanup or restoration of the property to the extent caused by
Franchisee's use, storage, or disposal of hazardous substances, whether or not
intentional, and the use, storage, or disposal of such substances by Franchisee's
agents, contractors, or other persons acting under Franchisee's control, whether or
not intentional. Franchisee shall have only that responsibility or liability for
managing, monitoring, or abating a hazardous condition that it may have under
state or federal law and this Franchise shall not be interpreted to expand
Franchisee's legal obligations relating to any pre-existing hazardous substances
undisturbed by Franchisee.
SECTION 39. - Llcanses, Feas ffid Taxes, Prior to constructing any
Facilities or providing Services within the City, Franchisee shall obtain a business or
utility license from the City, if so required. Franchisee shall pay all applicable taxes
on personal property and Facilities owned or placed by Franchisee in the Rights-of-
Way and shall pay all applicable license fees, permit fees, and any applicable tax
unless documentation of exemption is provided to the City and shall pay utility
taxes and license fees properly imposed by the City under this Franchise. However,
nothing in this Franchise is intended to alter, amend, modify or expand the taxes
and fees that may lawfully be assessed on Franchisee's business activities under
applicable law.
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SECTION 4q. - Miscollaneous.
40.L The City and Franchisee respectively represent that their respective
signatories are duly authorized and have full right, power, and authority to execute
this Franchise on such party's behalf.
40.2 This Franchise shall be construed in accordance with the laws of the State of
Washington. The United States District Court for the Western District of
Washington, and King County Superior Court have proper venue for any dispute
related to this Franchise.
4O.3 Section captions and headings are intended solely to facilitate the reading of
this Franchise. These captions and headings shall not affect the meaning or
interpretation of the text within this Franchise.
40.4 Where the context so requires, the singular shall include the plural and the
plural includes the singular.
40.5 Franchisee shall be responsible for obtaining all other required approvals,
authorizations, and agreements from any party or entity and it is acknowledged and
agreed that the City is making no representation, warranty, or covenant whether
any of the foregoing approvals, authorizations, or agreements are required or have
been obtained by Franchisee.
40.6 This Franchise is subject to all applicable federal, State and local laws,
regulations and orders of governmental agencies as amended, including but not
limited to the Communications Act of 1934, as amended, the Telecommunications
Act of 1996, as amended, and the Rules and Regulations of the FCC. Neither the
City nor Franchisee waive any rights they may have under any such laws, rules or
regulations.
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4O.7 There are no third party beneficiaries to this Franchise
40.8 This Franchise may be enforced at both law and in equity.
IN WITNESS WHEREOF, this Franchise is signed in the name of the city of
Kent, Washington this day of 2020.
ATTEST:CITY OF KENT, WASHINGTON:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
ATTEST:
Accepted and approved this Jf 0", of A\ ,2020.
EXTENET SYSTEMS, INC
V-.-'7
Namefl-itle: oii[ril trIl-.
Aft'i, Geue?te Covutet
l/!
Pu c Notary
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City of Kenf - EXTENET SYSTEM+ INC
2020 Franchise Agreement
11th September
EXHTBIT A
STATEM ENT OF ACCEPTANCE
EXTENET sYsrEMs, rNc, a Delaware corporation, ("ExteNet") for itself, its
successors and assigns, accepts and agrees to be bound by all lawful terms,
conditions and provisions of the Franchise attached and incorporated by thisreference. ExteNet declares that it has carefully read the terms and conditionsof this Franchise and unconditionally accepts all of the terms and conditions ofthe Franchise and agrees to abide by such terms and conditions. ExteNet has
relied upon its own investigation of all relevant facts and it has not been inducedto accept this Franchise and it accepts all reasonable risks related to the
interpretation of this Franchise.
ExteNet Systems, Inc., a Delaware corporation
z/rt r TcZo4By:
Name:
Title:
Date:
a
I rfi. GEPePie czUpreg
EXTENET'S COPY
PLEASE RETURN TO:
CATHY HAPANIONEK
EXTENET SYSTEMS, INC.
3O3O WARRENVILLE ROAD, STE 340
LISLE, IL 60532
ORDINANCE NO. 4364
AN ORDINANCE of the City Council of theCity of Kent, Washington, granting ExteNet
Systems, Inc. a 10-year non-exclusive fiber
franchise, and authorizing the Mayor to sign all
documents necessary to implement the full terms
of the negotiated agreement.
RECITALS
A. ExteNet systems, Inc., a Deraware corporation,
("Franchisee") has requested that the city council grant it a non-exclusive
franchise to construct, maintain and operate a telecommunications
network in the city's right-of-way. This franchise does not authorize the
installation of small cells. ExteNet will enter into separate agreements with
the City for the installation of small cells.
B. Rcw 35A.47.o4o allows the city to grant nonexclusive
franchises to utility and cable providers for their use of city right of way,
but provides a franchise may not be adopted until at least five days have
passed after the franchise is first introduced to the City Council. This
franchise was first introduced to council at its regular meeting on July 21,
2020. Thereafter, it was presented to Council a second time at its regular
meeting on August 4, zo2o. Through this ordinance, council grants a 10-
year flber franchise to ExteNet and authorizes the Mayor to sign all
documents necessary to fully implement the agreement negotiated
between the City and ExteNet.
Fi ber F ra nch ise Aut h o rized -ExteUet Systems, fnc.
1
I
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
sEcrroM 7. - Franchise Granted. The Fiber Franchise Agreement
between the city of Kent and ExteNet systems, Inc., substantially in the
form attached and incorporated as Exhibit A, is hereby granted. upon
ExteNet's acceptance of the Fiber Franchise Agreement, the Mayor is
authorized to execute the same on behalf of the city of Kent, subject to
those changes that are not material in nature and may be authorized by
the City Attorney.
sEcTroN 2. Mayoral Authorization The Mayor is fufther
authorized to execute all documents necessary to implement the full terms
of the negotiated franchise.
sEcrroil 3. - severability. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall remain in full force and effect.
sEcrroU 4. - Effective Date. This ordinance, being an exercise of
a power specifically delegated to the city's legislative body, is not subject
to referendum. It shall be published and will take effect thirty (30) days
after its passage. The Fiber Franchise Agreement, however, shall become
effective only upon its acceptance by ExteNet systems, Inc. and execution
by the Mayor. Should ExteNet fail to timely file its written acceptance of
the Fiber Franchise Agreement, ExteNet will be deemed to have rejected
and repudiated the Fiber Franchise Agreement and the franchise will be
voidable by the City.
Fiber Franchise Authorized-
Exteilet Systemsr lnc.
2
ATTEST:
KIMBERLEY
A D
oTo, clw
FITZPATRICK, CITY ATTORNEY
Auqust 4. 2020
Date Approved
Auoust 4, 2020
Date Adopted
Auqust 7. 2020
Date Published
Fiber Franch ise Authorized-
ExteNet Systems, Inc.
3
EXHIBIT A
Fiber Franchise Agreement
EXTENET SYSTEMS, INC, AND THE CITY OF KENT, WASHINGTON
FIBER FRANCHISE AGREEMENT
TABLE OF CONTENTS
sEcTroN 1. DEFINITIONS........ ......1
SECTION 2. FRANCHISE GRANTED ....'.,.2
SECTTON 3. GRANT OF AUTHORITY LIMITED.3
SECTION 4,
SECTION 5.
5.1
5.2
5.3
5.4
5.8
5.9
5.10
4
4
5
5
6
6
7
7
7
7
7
8
5.5
5.6
5.7
Relocation
Survival..
Locate..
Notice and Relocation Process....
Alternative Arrangements.,........
Contractor Delay Claims.
Indemnification..
Moving of Buildings or Other Objects....
City's Costs.
RELOCATION OF FACILITIES..
Relocation Req u irement
Information Request
Current Inventory.
Inspection
SECTION 6. UNDERGROUNDING OF FACILITIES
SECTION 7. INFORMATION, INVENTORY AND RECORDS .........1O
7.t
7.2
7.3
7.4
7.5
10
11
11
Public Records Act,... ,...I2
Annual Audit....13
SECTION 8. UNAUTHORIZED FACILITIES,.,...,,.13
SECTION 9.WORK IN THE RIGHTS.OF.WAY.t4
SECTION 10. TREES.L7
SECTION 11. ONE CALL LOCATOR SERVICE 18
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City of Kenf - EXTENET SVSTEMS, XNC
2020 Fra nch ise Ag reement
SECTION 12.
SECTION 13.
SECTION 14.
SECTION T5.
SECTION 16.
SECTION 17.
SECTION 18.
SECTION 19.
19.1
SECTION 20.
20.t
20.2
20.3
20,4
20.5
20.6
SECTION 22.
22.7
22.2
22.3
22.4
SECTION 23.
SECTION 24.
General Indemnification..........
Indemnification for Relocation..
Procedures and Defense......,...
SAFETY REQUTREMENTS.... ....18
WORK ON CONTRACTORS AND SUBCONTRACTORS......,.. 19
PROVISION OF CONDUIT AND DARK FIBER.. .......20
RESTORATION AFTER CONSTRUCTION. .....21
EMERGENCIES,........22
RECOVERY OF COSTS 24
CITY'S RESERVATION OF RIGHTS...... .....25
INDEMNIFICATION; LIABILIW.... ...........26
26
L9.2
19.3
L9.4
19.5
19.6
19.7
27
.27
INSURANCE.......29
Policies..29
30
30
Deductible/Certificate of Insu rance,..
Requirements....
Acceptability of Insu rers...
Verification of Coverage.......
BONDS...........
Construction Guara ntee..,
Maintenance Guara ntee...
Franchise Bond
Form of Bonds.
30
.31
31Maintenance of Insurance.,
SECTION 21. ABANDONMENT OF
TELECOMMUNICATIONS NETWORK......
FRANCHISEE'S
31
32
32
33
33
34
REMEDIES TO ENFORCE COMPIIANCE......., .,,.34
REVOCATTON..... ....36
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City of Kenf - EXTENET SYSTEM+ INC
2020 Franchise Agreement
SECTION 25.
SECTION 26.
SECTION 27.
SECTION 28.
SECTION 29.
SECTION 30.
CONTROL
SECTION 3T.
SECTION 32.
SECTION 33,
SECTION 34.
SECTION 35.
SECTION 35.
SECTION 37.
SECTION 38.
SECTION 39.
SECTION 40.
POLXCE POWERS AND CITY REGULATIONS....,..........,....36
COST OF PUBIICATION.. ,..,.,,,.,37
ASSIGNMENT AND CHANGES OF OWNERSHIP OR
38
ENTIRE AGREEMENT.......39
EMINENT DOMAIN...........39
VACATION...... ,......,.,.40
NOTICE...
SEVERABILITY. ...........4O
COMPLIANCE WITH ALL APPLICABLE IAWS..............,....41
ATTORNEY'S FEES..4t
HAZARDOUS SUBSTANCES....
LTCENSES, FEES AND TAXES...,
MISCELLANEOUS.
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.42
42
43
EXTENET SYSTEMS, rNC., AND THE CITY OF KENT, WASHINGTON
FIBER FRANCHISE AGREEMENT
ECTION 7. : Deflnitlon$, In addition to terms otherwise defined herein,
the following definitions shall apply generally to the provisions of this Franchise.
1.1 Director means the Public Works Director or designee.
I.2 Emergency means a condition posing an imminent threat to property, life,
health, or safety of any person or entity.
1.3 Facilities mean one or more elements of Franchisee's telecommunications
network, with all necessary cables, wires, conduits, ducts, pedestals, antennas,
electronics, and other necessary appuftenances; except that new utility poles or
towers for overhead wires, cabling or antennas are specifically excluded. Facilities
shall not include microcells or small cells to be owned or operated by Franchisee.
Equipment enclosures with air conditioners or other noise generating equipment are
also excluded from Facilities, to the extent any such equipment is located in zoned
residential areas of the City.
t.4 Rights-of-Way (singular "Right-of-Way") as used in this Franchise, means the
surface of, and the space above and below, dhy public street, highway, freeway,
bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive,
circle, pathways, spaces, or other public right-of-way, and over which the City has
authority to grant permits, licenses or franchises for use thereof, or has regulatory
authority thereover. Right-of-Way does not include railroad right-of-way, airports,
harbor areas, buildings, parks, poles, conduits, open spaces, nature trails, poles,
dedicated but un-opened right-of-way, environmentally sensitive areas and any
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land, facilities, or property owned, maintained, or leased by the city in its
governmental or proprietary capacity or as an operator of a utility.
SECTION 2, - Franchlse Granted,
2.L Pursuant to RCW 35A.47.040, the City of Kent, a Washington municipal
corporation ("City"), hereby grants to Franchisee, its successors, legal
representatives and assigns, subject to the terms and conditions set forth below, a
non-exclusive Franchise for a period of ten (10) years, beginning on the effective
date of this Franchise.
2.2 This Franchise grants Franchisee the right, privilege, and authority to
construct, operate, maintain, replace, relocate, restore, upgrade, remove,
excavate, acquire, sell, lease, and use all necessary Facilities for a
telecommunications network in, under, on, across, over, through, along or below
the public Rights-of-Ways located in the City, and any areas added to the corporate
limits of the City during the term of this Franchise (the "Franchise Area"). All
Facilities require City permits issued pursuant to Section 9.3.
2.3 This Franchise shall not prevent the City from granting other or further
franchises in, along, over, through, under, below, or across any Rights-of-way.
This Franchise shall not prevent or prohibit the City from using any Rights-of-Way
or affect its jurisdiction over any Rights-of-Way or any part of Right-of-Way. The
City shall retain power to make all necessary changes, relocations, repairs,
maintenance, establishment, improvement, dedication of Right-of-Way as the City
deems fit, including the dedication, establishment, maintenance, and improvement
of all new Rights-of-Way, thoroughfares, and other public properties of every type
and description.
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ECTION 3. - Grant of Authartty Limited.
3.1 The authority granted by this Franchise is a limited, non-exclusive
authorization to occupy and use the City's Rights-of-Way. Franchisee represents
that it currently provides or intends to provide the following services within the
City: data transport, internet access, and local and long distance voice selices,
including IP voice services, cell site fronthaul and backhaul and Facilities leasing to
third parties, and all other such regulated services that the Washington
Transportation and Utilities Commission has authorized Franchisee to offer and
provide as well as all other such non-regulated and lawful seruices that the
Franchisee may now or in the future offer (the "Selices'). If Franchisee desires to
expand the regulated Services provided within the City, it shall provide written
notification of the addition of such regulated services prior to the addition of the
regulated service or within a reasonable time (not to exceed ninety (90) days) after
such regulated services are offered; except that Franchisee may not offer Cable
Services as that term is defined in 47 U.S.C. S 522(6).
3.2 Nothing within this Franchise shall be construed to grant or convey any right,
title, or interest in the Rights-of-Way of the City to Franchisee other than for the
purpose of providing the Services.
3.3 This Franchise does not and shall not convey any right to Franchisee to install
its Facilities on, under, over, across, or to otherwise use City owned or leased
propefties of any kind outside of the incorporated area of the City or to install
Facilities on, under, over, across, or otherwise use any City owned or leased
property other than the City's Rights-of-Way. This Franchise does not convey any
right to Franchisee to install its Facilities on, under, over, or across any facility or
structure owned by a third-party without such written approval of the third-party.
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3.4 Franchisee is authorized without prior City approval, to offer or provide
capacity or bandwidth, leased fiber or leased conduits or any other Services set
forth in Section 3.1to its customers consistent with this Franchise provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and remains
responsible for constructing, installing, and maintaining its Facilities
pursuant to the terms and conditions of this Franchise;
b. Franchisee may not grant rights to any customer or lessee that are
greater than any rights Franchisee has pursuant to this Franchise;
c. Such customer or lessee shall not be construed to be a third-party
beneficiary under this Franchise; and
d. No such customer or lessee that accesses Franchisee's
telecommunications Facilities within the City limits may use the
telecommunications system or Services for any purpose not authorized
by this Franchise, unless that customer has a franchise agreement
with the City and then the customer may use Franchisee's Facilities or
Services consistent with the terms of its franchise,
ECTION 4. - Location of Facllities. Franchisee may locate its Facilities
anywhere within the Franchise Area consistent with the City's Design and
Construction Standards and subject to the City's applicable permit requirements.
Franchisee shall not be required to amend this Franchise to construct or acquire
Facilities within the Franchise Area.
SECTION 5. - Relocatlon of Fecllitles,
5.1 Relocation Requirement. Franchisee agrees to protect, support, temporarily
disconnect and then reconnect, relocate, or remove from any rights-of-way any of
its Facilities when reasonably required by the City by reason of traffic conditions,
public safety, dedications of new Rights-of-way, the establishment and
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2020 Franchise Agreement
improvement of new Rights-of-Way, widening or improvement of existing Rights-of-
Way or both, street vacations, freeway construction, change or establishment of
street grade, or the construction of any public improvement or structure by any
governmental agency acting in a governmental capacity or as otherwise necessary
for the operations of the City or other governmental entity. Collectively, such
matters are referred to within this Franchise with the term "Public Improvement."
5.2 Relocation. If the request for relocation from the City arises from a public
Improvement, in which structures or poles are either replaced or removed, then
Franchisee shall relocate or remove its Facilities as required by the City, and at no
cost to the City, subject to the procedure in Section 5.4. Franchisee acknowledges
and agrees that the placement of Facilities on third pafty-owned or City owned
structures does not convey an ownership interest in such structures. Franchisee
acknowledges and agrees, that to the extent Franchisee's Facilities are on poles
owned by third parties, the City shall not be responsible for any costs associated
with requests for relocation which the City makes solely for aesthetic purposes and
where such request arises out of a Public Improvement.
5.3 Locate. Upon written request of the City, or a third pafty performing work in
the Right-of-Way, and in order to facilitate the design of City street and Right-of-
Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and
if determined necessary by the City, to excavate and expose its Facilities for
inspection so that the Facilities' location may be taken into account in the
improvement design. The decision as to whether any Facilities need to be relocated
in order to accommodate the Public Improvement shall be made by the City upon
review of the location and construction of Franchisee's Facilities. The City shall
provide Franchisee at least fourteen (14) calendar days'written notice prior to any
excavation or exposure of Facilities. Franchisee shall be responsible for any delays
due to failure to locate its Facilities when requested, except that Franchisee shall
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2020 Franch ise Agreement
not be responsible for delays or damages due to circumstances beyond the control
of the Franchisee.
5.4 Notice and Relocation Procedure. If the City determines that the Public
Improvement necessitates the relocation of Franchisee's existing Facilities, the City
shall:
a. At least ninety (90) calendar days prior to commencing the Public
Improvement, provide Franchisee with written notice requiring such
relocation and a date by which relocation must be complete; provided,
however, that in the event of an emergency situation, defined for
purposes of this Franchise as a condition posing an imminent threat to
property, life, health, or safety of any person or entity, the City shall
give Franchisee written notice as soon as practicable; and
b. At least ninety (90) calendar days prior to commencing the Public
Improvement, provide Franchisee with copies of pertinent portions of
the plans and specifications for the improvement project and a
proposed location for Franchisee's Facilities so that Franchisee may
relocate its Facilities in other City Rights-of-Way in order to
accommodate such improvement projec[ and
c. After receipt of such notice and such plans and specifications,
Franchisee shall complete relocation of its Facilities consistent with the
date for relocation established in accordance with this Section 5.4 at
no charge or expense to the City, except as otherwise provided by law.
Relocation shall be accomplished in such a manner as to accommodate
the Public Improvement.
5.5 Alternative Arrangements. The Franchisee may make its own appropriate
arrangements in response to a request for relocation of its Facilities from a person
or entity other than the City, so long as any improvements being constructed are
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2020 Franchise Agreement
not or will not become City-owned, operated or maintained; except that any such
arrangements shall not unduly delay a City construction project.
5.6 Contractor Delay Claims. Franchisee shall be solely responsible for the out-
of-pocket costs incurred by the City for delays in a Public Improvement to the
extent the delay is caused by or arises out of Franchisee's failure to comply with the
final schedule for the relocation (other than as a result of a Force Majeure Event or
causes or conditions caused by the acts or omissions of the City or any third party
unrelated to Franchisee; Franchisee vendors and contractors shall not be
considered unrelated third parties). Such out-of-pocket costs rnay include, but are
not limited to, payment to the City's contractors and/or consultants for increased
costs and associated court costs, interest, and reasonable attorneys' fees incurred
by the City to the extent directly attributable to such Franchisee's caused detay in
the Public Improvement.
5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay the costs
of defending the city, in accordance with the provisions of section 19.
5.8 Moving of Buildings or Other Obiect$., Franchisee shall, on the request of any
individual or private entity holding a valid permit issued by a governmental
authority, temporarily remove, raise or lower its Facilities to permit the moving of
buildings or other objects. The expense of such temporary removal, raising or
lowering of Facilities shall be at the expense of the requestor.
5.9 City's Costs. If Franchisee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in this Section 5,
the City may perform such work or cause it to be done, and the City's costs shall be
paid by Franchisee pursuant to Sections 17.3 and L7.4.
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5.10 Survival. The provisions of this Section 5 shall survive the expiration or
termination of this Franchise during such time as Franchisee continues to have
Facilities in the Rights-of-Way.
ECTION 6. - Underaroundlng of Facilitles.
6'1 Franchisee shall install all wires, cables or other facilities underground
(unless specifically authorized by permit of the City) in the manner required by the
City as described in chapter 7.10, Kent City Code, where all other utilities are
required to underground. Unless otherwise permitted by the City, Franchisee shall
also underground its Facilities in all new developments and subdivisions and in any
development or subdivision where utilities are currently underground. Except as
specifically authorized by the City, Franchisee shall not erect poles or run or
suspend wires, cables, or any other facilities on existing poles.
6.2 Franchisee acknowledges and agrees that if the City does not require the
undergrounding of its Facilities at the time of a permit application, the City may, at
any time in the future, require that the Franchisee to underground its Facilities at
Franchisee's expense.
6.3 If the City requires the undergrounding of the aerial utilities in any area of
the City, Franchisee shall underground its aerial Facilities in the manner specified
by the City, concurrently with and in the area of the other affected utilities. The
location of any relocated and underground utilities shall be approved by the City.
Where other utilities are present and involved in the undergrounding project,
Franchisee shall only be required to pay its fair share of common costs borne by all
utilities, in addition to the costs specifically attributable to the undergrounding of
Franchisee's own Facilities, "Common costs" shall include necessary costs not
specifically attributable to the undergrounding of any particular facility, such as
costs for common trenching and utility vaults. "Fair share" shall be determined for
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a project on the basis of the number of conduits of Franchiseet Facilities being
undergrounded in comparison to the total number of conduits of all other utility
facilities being undergrounded. This Section 6.3 shall only apply to the extent
Franchisee has existing aerial Facilities in the City or is specifically authorized to
build aerial Facilities by the City,
6.4 Within forty-eight (48) hours (excluding weekends and City-recognized
holidays) following a request from the City, Franchisee shall, at its sole cost and
expense, locate underground Facilities by marking the location on the ground. The
location of the underground Facilities shall be identified using orange spray paint,
unless otherwise specified by the City, and within two feet of the actual location,
6.5 Franchisee shall be entitled to reasonable access to open utility trenches,
provided that such access does not interfere with the City's placement of utilities or
increase the City's costs, Franchisee shall pay the City's actual costs resulting from
providing Franchisee access to an open trench, including without limitation the pro
rata share of the costs of access to an open trench and any costs associated with
the delay of the completion of a public works project. Franchisee shall reimburse
the City in accordance with the provisions of Section 17.3 and Section 17.4.
6.6 Franchisee shall not remove any underground cable or conduit that requires
trenching or other opening of the Rights-of-Way along the extension of cable to be
removed, except as provided in this Section 6.6. Franchisee may remove any
underground cable from the Right-of-Way that can be removed without trenching or
other opening of the Right-of-Way along the extension of cable to be removed, or if
otherwise permitted by the City. Franchisee may remove any underground cable
from the Rights-of-way where reasonably necessary to replace, upgrade, or
enhance its Facilities, or pursuant to Section 5, Franchisee must apply and receive
a permit, pursuant to Section 9.3, prior to any such removal of underground cable
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or conduit from the Right-of-Way and must provide as-built plans and maps
pursuant to Section 7.
6.7 When the City determines, in the Cityt sole discretion, that Franchisee's
underground Facilities must be removed in order to eliminate or prevent a
hazardous condition, Franchisee shall remove the Facilities at Franchisee's sole cost
and expense.
6'8 Underground cable and conduit in the Right-of-Way that is not removed will
be deemed abandoned and title thereto shall vest in the City at no cost to the City.
The City may also pursue any available remedy set forth in Section 5 and Section
23.
6.9 The provisions of this Section 6 shall survive the expiration, revocation, or
termination of this Franchise during such time as Franchisee continues to have
Facilities in the Rights-of-Way. Nothing in this Section 6 shall be construed as
requiring the City to pay any costs of undergrounding any of Franchisee's Facilities.
ECTION 7. - Information. fnventorv and RecorCE
7.7 Information Request.
a. Franchisee shall supply and maintain updated, at no cost to the city,
any information reasonably requested by the City to coordinate its
functions with the Franchisee's activities and fulfill any municipal
functions under state law. This required information may include, but
is not limited to, any installation inventory, location of existing or
planned Facilities, maps, plans, operational data, and as-built drawings
of Franchisee's Facilities in the City, Franchisee shall warrant the
accuracy of all information provided to the City.
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within thirty (30) calendar days of a written request from the Director,
but in no event more than once annually, the Franchisee shall furnish
the clty with information sufficient to demonstrate: 1) that the
Franchisee has complied with all applicable requirements of this
Franchise; and 2) that all utility taxes due the city in connection with
the Franchisee's services and Facilities provided by the Franchisee
have been properly collected and paid by the Franchisee.
7.2 Current Inventory. Franchisee shall maintain a current inventory of Facilities
throughout the Term of this Franchise. Franchisee shall provide to City a copy of
the inventory report no later than one hundred eighty (1BO) calendar days after the
effective date of this Franchise, and an updated inventory report shall be provided
by December 31 of each year and within thirty (30) calendar days of a reasonable
request by the City. The inventory report shall include a route map of those basic
portions of the fiber system that are located within the Right-of-Way and be in a
digital format. The inventory report shall include the vertical and horizontal
location of the facilities, including the height from the bottom of the pole to the
fiber or depth below the finished surface. The format of the data for overlaying on
the City's GIS mapping system shall utilize NAD 83 HARN State plane as the
horizontal datum.
7.3 Inspection. All books, records, maps, and other documents maintained by
Franchisee with respect to its Facilities within the Rights-of-Way shall be made
available for inspection by the City at reasonable times and intervals; except that
nothing in this Section 7,3 shall be construed to require Franchisee to violate state
or federal law regarding customer privacy, nor shall this Section 7.3 be construed
to require Franchisee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature. Unless otherwise
permitted or required by State or federal law, nothing in this Section 7.3 shall be
construed as permission to withhold relevant customer data from the City that the
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b
City requests in conjunction with a tax audit or review; provided, however,
Franchisee may redact identifying information such as names, street addresses
(excluding City and zip code), Social Security Numbers, or Employer Identification
Numbers related to any confidentiality agreements Franchisee has with third
pafties,
7.4 Public Records Act,
a. Franchisee acknowledges that information submitted to the City is
subject to the Washington Public Records Act, chapter 42.56 RCW, and
is open to public inspection, subject to any exceptions permitted by
law (i,e., unless an exemption applies).
b. Franchisee may identify documents submitted to the City that
Franchisee believes are non-disclosable, such as trade secrets.
Franchisee shall be responsible for clearly and conspicuously
identifying the work as confidential or proprietary, and shall provide a
brief written explanation as to why such information is confidential and
how it may be treated as such under State or federal law. The City
agrees to keep confidential any proprietary or confidential books or
records to the extent permitted by law.
c, If the City receives a public records request under chapter 42,56 RCW
or similar law for the disclosure of the documents or any part of the
documents Franchisee has designated as confidential, trade secret, or
proprietary, the City shall provide Franchisee with written notice of the
request, including a copy of the request prior to disclosure so that
Franchisee can take appropriate steps to protect its interests. Nothing
in this Section 7.4 prohibits the City from complying with chapter
42.56 RCW or any other applicable law or court order requiring the
release of public records, and the City shall not be liable to Franchisee
for compliance with any law or court order requiring the release of
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public records. The city will not assert an exemption from disclosure
or production on Franchisee's behalf.
The city shall comply with any injunction or court order obtained by
Franchisee that prohibits the disclosure of any such confidential
records. If a higher court overturns an injunction or court order and
such higher court action is or has become final and non-appealable,
Franchisee shall reimburse the city for any fines or penalties imposed
for failure to disclose such records within forty-five (45) days of a
request from the city, unless additional time is reasonably necessary
under the circumstances and is agreed to by the parties,
7.5 Annual Audit, On an annual basis, upon thirty (30) calendar days prior
written notice, the City shall have the right to conduct an independent audit of
Franchisee's records reasonably related to the administration or enforcement of this
Franchise, in accordance with GAAP. If the audit shows that tax or fee payments
have been underpaid by three percent (3Vo) or more, Franchisee shall pay the total
cost of the audit.
SECTION 8' - Unauthorized Faeillties. Any Facilities installed in the City
Right-of-Way that were not authorized under this Franchise or other required City
Approval ("Unauthorized Facilities") will be subject to the payment of an
Unauthorized Facilities charge by Franchisee. City shall provide written notice to
Franchisee of any Unauthorized Facilities identified by City staff and Franchisee
shall have thitty (30) calendar days therdafter in which to establish that this
installation was authorized or obtain the applicable permit. Failure to establish that
the installation is authorized will result in the imposltion of an Unauthorized
Facilities charge in the amount of one Thousand Dollars (91,000.00) per
Unauthorized Ficility per day starting on the thirty-first (31st) day. Franchisee may
submit an application to the City under this Franchise for approval of the
Unauthorized Facilities. If the application for the Unauthorized Facilities is not
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d
approved, Franchisee shall remove the Unauthorized Facilities from the City's Right-
of-Way within thirty (30) calendar days after the expiration of all appeal periods for
such denial. The City shall not refund any Unauthorized Facilities charges, unless
Franchisee is successful in an appeal. This Franchise remedy is in addition to any
other remedy available to the City at law or equity.
SECTION 9, - Work in the Riahts-of-Wav,
9.1 During any period of relocation, construction or maintenance, all work
performed by Franchisee or its contractors shall be accomplished in a safe and
workmanlike manner and only after obtaining permits pursuant to Section 9.3.
Franchisee shall minimize interference with the free passage of traffic and the free
use of adjoining property, whether public or private. Franchisee shall at all times
post and maintain proper traffic control to warn and direct the road users. Traffic
control devices include but are not limited to barricades, traffic cones, traffic drums,
tubular markers, flags, certified flaggers, lights, flares, and other measures as
required for the safety of all members of the general public. Franchisee shall also
comply with all applicable safety regulations during such period of construction as
required by the ordinances of the City or the laws of the State of Washington,
including RCW 39.04.180 for the requirement of trench safety systems for trench
excavations.
9'2 Franchisee shall, at its own expense, maintain its Facilities in a safe
condition, in good repair, and in a manner suitable to the City. Additionally,
Franchisee shall keep its Facilities free of debris and anything of a dangerous,
noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or any interference with City services. The provisions of this Section 9
shall survive the expiration of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way.
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9.3 Whenever Franchisee shall commence work in any public Rights-of-Way for
the purpose of excavation, installation, construction, repair, maintenance, or
relocation of its cable or equipment, it shall apply to the City for a permit to do so
and, in addition, shall give the City at least ten (10) working days prior notice of its
intent to commence work in the Rights-of-Way. All work by Franchisee in the area
shall be pedormed in accordance with applicable City standards and specifications
and warranted for a period of two (2) years, normal wear and tear excepted. In no
case shall any work commence within any Rights-of-Way without a permit, except
as otherwise provided in this Franchise.
9.4 If either the City or Franchisee plans to make excavations in any area
covered by this Franchise and as described in this Section 9.4, the pafty planning
such excavation shall afford the other, an opportunity to share such excavation,
PROVIDED THAT:
a' The joint use shall not unreasonably delay the work of the party
causing the excavation to be made;
b. The joint use shall be arranged and accomplished on terms and
conditions satisfactory to both parties; and
c. The initiating party may deny such request for safety reasons.
9.5 Except for emergency situations, Franchisee shall give at least seven (7)
days' prior written notice of intended construction to residents within 100 feet of
the construction area. This notice shall contain the dates, contact number, nature
and location of the work to be performed; a door hanger is permissible. At least
twenty-four (24) hours prior to entering private property or streets or public
easements adjacent to or on such private property, Franchisee shall physically post
a notice on the property indicating the nature and location of the work to be
pedormed; a door hanger is permissible. Nothing in this Franchise gives the
Franchisee the right to enter onto private property without the permission of the
private propefty owner.
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9.6 Franchisee shall make a good faith effort to comply with the propefty
owner/resident's preferences, if any, on location or placement of underground
installations (excluding aerial cable lines utilizing existing poles and existing cable
paths), consistent with sound engineering practices. Following performance of the
work, Franchisee shall restore the private property as nearly as possibte to its
condition prior to construction, except for any change in condition not caused by
Franchisee. Any disturbance of landscaping, fencing, or other improvements on
private property caused by Franchisee's work shall, at the sole expense of
Franchisee, be promptly repaired and restored to the reasonable satisfaction of the
property owner/resident.
9.7 Franchisee shall at all times comply with the safety requirements contained
in Section 12 and all applicable federal, State and local safety reguirements.
9.8 Upon prior written notice from the City, Franchisee shall meet with the City
and other franchise holders to schedule and coordinate construction in the Rights-
of-Way. To minimize public inconvenience, disruption or damage, the Franchisee
shall coordinate all construction locations, activities, and schedules as directed by
the City.
9.9 Franchisee acknowledges that it shall be solely responsible for compliance
with all applicable marking and lighting requirements of the FAA and the FCC with
respect to Franchisee's Facilities. Franchisee shall indemnify and hold the City
harmless from any fines or other liabilities caused by Franchisee's failure to comply
with these requirements. Should Franchisee or the City be cited by either the FCC
or the FAA because the Facilities or Franchisee's equipment is not in compliance and
should Franchisee fail to cure the conditions of noncompliance within the timeframe
allowed by the citing agency, the City may elect any or all of the following
remedies: (1) cure the conditions of noncompliance at Franchisee's expense, and
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collect all reasonable costs from Franchisee in accordance with the provisions of
Section 17.3 and Section V.a; Q) collect damages pursuant to Section 23.2; and
(3) revoke this Franchise pursuant to Section 24. Franchisee shall not be liable for
any claims, damages or liability resulting from City's acts in effecting the cure on
behalf of Franchisee.
ECTION 70. - Trees.
10.1 Franchisee may trim trees upon and overhanging on public ways, streets,
alleys, sidewalks, and other public places of the City so as to prevent the branches
of any such trees from coming in contact with Franchisee's Facilities, The right to
trim trees in this Section 10.1 only applies to the extent necessary to protect above
ground Facilities. Franchisee shall ensure that its tree trimming activities protect
the appearance, integrity, and health of the trees to the extent reasonably possible.
Franchisee shall be responsible for all debris removal from such activities.
70.2 Upon written request of the Director, Franchisee shall prepare and maintain a
tree trimming schedule to ensure compliance with this Section 10.2 and to avoid
exigent circumstances where tree cutting, trimming, or removal is necessary to
protect the public safety or continuity of service. Franchisee shall submit the tree
trimming schedule to the Director. Franchisee shall notify and obtain written
approval from the City, which shall not be unreasonably withheld, delayed or
conditioned, before completing any trimming, except in an emergency.
10.3 All tree trimming shall be completed at the expense of Franchisee.
Franchisee may contract for such services, however, City approval is required prior
to commencing such trimming, which shall not be unreasonably withheld, delayed
or conditioned, Nothing in this Franchise grants Franchisee any authority to act on
behalf of the City, to enter upon any private property, or to trim any tree or natural
growth not owned by the City. Franchisee shall be solely responsible and liable for
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any damage to any third parties' trees or natural growth caused by Franchisee's
actions. Franchisee shall indemnify, defend and hold harmless the City from claims
of any nature arising out of any act or negligence of Franchisee with regard to tree
and/or natural growth trimming, damage, and/or removal. Franchisee shall
reasonably compensate the City or the property owner for any damage caused by
trimming, damage, or removal by Franchisee. Except in an emergency, all tree
trimming must be performed under the direction of an arborist certified by the
International Society of Arboriculture, unless otherwise approved by the Director.
SECTION 77. - One Call Locator Service, Prior to doing any work in the
Rights-of-Way, the Franchisee shall follow established procedures, including
contacting the Utility Notification Center in Washington and comply with all
applicable State statutes regarding the One Call Locator Service pursuant to
chapter L9.L22 RCW. The City shall not be liable for any damages to Franchisee's
Facilities or for interruptions in service to Franchisee's customers that are a direct
result of Franchisee's failure to accurately locate its Facilities within the prescribed
time limits and guidelines established by the One Call Locator Service regardless of
whether the City issued a permit.
SECTION 12. - Safety Requiremenb.
Lz.l Franchisee shall, at all times, employ professional care and shall install and
maintain and use industry-standard methods for preventing failures and accidents
that are likely to cause damage, injuries, or nuisances to the public. All structures
and all lines, equipment, and connections in, over, under, and upon the Rights-of-
Ways, wherever situated or located, shall at all times be kept and maintained in a
safe condition. Franchisee shall comply with all applicable federal, State, and City
safety requirements, rules, regulations, laws, and practices, and employ all
necessary devices as required by applicable law during the construction, operation,
maintenance, upgrade, repair, or removal of its Facilities. By way of illustration and
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not limitation, Franchisee shall also comply with the applicable provisions of the
National Electric Code, National Electrical Safety Code, FCC regulations, and
Occupational Safety and Health Administration (OSHA) Standards. Upon
reasonable notice to Franchisee, the City reserves the general right to inspect the
Facilities to evaluate if they are constructed and maintained in a safe condition.
L2.2 If an unsafe condition or a violation of Section 12.1 is found to exist, and
becomes known to the City, the City agrees to give Franchisee written notice of any
such condition and afford Franchisee a reasonable opportunity to repair the
condition. If Franchisee fails to start to make the necessary repairs and alterations
within a reasonable time frame specified in such notice (and pursue the cure to
completion), then the City may make such repairs or contract for them to be made,
All costs, including administrative costs, incurred by the City in repairing any unsafe
conditions shall be borne by Franchisee and reimbursed to the City pursuant to
Section 17.3 and Section 17.4.
L2.3 Additional safety standards include:
a. Franchisee shall endeavor to maintain all equipment lines and facilities
in an orderly manner, including, but not limited to, the removal of all
bundles of unused cable.
b. All installations of equipment, lines, and ancillary facilities shall be
installed in accordance with industry-standard engineering practices
and shall comply with all federal, State, and local regulations,
ordinances, and laws.
c. The Franchisee shall protect any opening or obstruction in the Rights-
of-Way or other public places made by Franchisee in the course of its
operations with adequate barriers, fences, or boarding, the bounds of
which, during periods of dusk and darkness, shall be clearly marked
and visible at night.
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SECTION 73. - Work of Contractors and Suhcontfactorc, Franchisee's
contractors and subcontractors shall be licensed and bonded in accordance with
State law and the City's ordinances, regulations, and requirements. Work by
contractors and subcontractors is subject to the same restrictions, limitations, and
conditions as if the work were performed by Franchisee. Franchisee shall be
responsible for all work performed by its contractors and subcontractors and others
performing work on its behalf as if the work were performed by Franchisee and
shall ensure that all such work is performed in compliance with this Franchise and
applicable laws.
SECTION 74. - Provision of Conduit and Dark Fiber.
t4.L The City may request that Franchisee provide the City with a single inch and
a quarter (7.25") conduit, and related structures necessary to access the conduit
pursuant to RCW 35'99.070 in one or more of the locations where Franchisee
constructs, installs or relocates Facilities underground, If requested by the City,
such conduit shall be provided at Franchisee's incremental cost for providing the
conduit and shall only be used for the City's own internal use and shall not be
resold, leased, exchanged to any third party. Franchise shall install a locator wire
and cap off all conduit ends. Conduit ends shall be marked on the as-built plans
and maps required in Section 7. Any conduit delivered to the City pursuant to this
Section will become property of the City, and Franchisee will have no ongoing
maintenance, liability or other obligations to the City or any third party with respect
to such conduit' Should City request any conduit as contemplated in this Section,
City must make the request in writing prior to issuance of the permit to Franchisee
and the parties will negotiate a separate agreement.
L4.2 Except in emergency situations, Franchisee shall provide the Director with at
least thirty (30) days' advance written notice of any construction, relocation, or
placement of ducts or conduits in the Rights-of-Way and provide the City an
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opportunity to request that Franchisee provide the City with additional duct or
conduit, and related structures necessary to access the conduit pursuant to RCW
35.99.070. This notification shall be in addition to the requirement to apply for and
obtain permits pursuant to Section 9.3.
SECTION 75, - Restoration after Construction,
15.1 Franchisee shall repair any damage to the Rights-of-Way, and the property of
any third PartY, after installation, construction, relocation, maintenance, or repair of
its Facilities or after abandonment approved pursuant to Section 21, within thirty
(30) days following the date of any of these activities at Franchisee's sole cost and
expense. Franchisee shall restore the Rights-of-Way and the surface of the Rights-
of-Way to the same or better condition as it was immediately prior to any
installation, construction, relocation, maintenance or repair by Franchisee.
Franchisee shall not be responsible for any changes to the Rights-of-Way not
caused by Franchisee or anyone doing work for Franchisee. No survey monument
may be removed (or replaced) without a professional land surueyor obtaining a
permit in advance from the Washington State Department of Natural Resources and
submitting a copy of the approved permit to the City. Franchisee shall restore all
concrete encased monuments that will be disturbed or displaced by such work to
City standards and specifications. The Director shall have final approval of the
condition of the Rights-of-Way after repair or restoration by the Franchisee.
L5.2 Franchisee agrees to complete all restoration work to the Franchise Area or
other affected area at its sole costs and expense and according to the time and
terms specified in the construction permit issued by the City. Franchisee also
agrees to repair any damage caused by work to the Franchise Area within fourteen
(14) days unless otherwise approved by the Director. All work by Franchisee
pursuant to this Franchise shall be performed in accordance with applicable City
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standards and warranted for a period of two (2) years and for undiscovered defects
as is standard and customary for this type of work.
15.3 If conditions (e.9., weather) make the complete restoration required under
this Section 15 impracticable, Franchisee shall temporarily restore the affected
Right-of-Way or property at its sole cost and expense. Franchisee shall promptly
undertake and complete the required permanent restoration as soon as conditions
no longer make such permanent restoration impracticable.
15.4 [f Franchisee does not repair a Right-of-Way or an improvement in or to a
Right-of-Way within the time prescribed by this Section 15, the City may repair the
damage and shall be reimbursed its actual cost within sixty (60) days of submitting
an itemized invoice to Franchisee in accordance with the provisions of Section 17.3
and Section L7.4. The City may also bill Franchisee for any expenses associated
with the inspection of such restoration work.
15.5 The provisions of this Section 15 shall survive the expiration or termination
of this Franchise so long as Franchisee continues to have Facilities in the Rights-of-
way and has not completed all restoration to the city's standards.
SECTXON 16. - Emeroencies.
16.1 In the event of any emergency in which any of Franchisee's Facilities located
in or under any street endangers the property, life, health, or safety of any person,
entity or the City, or if Franchisee's construction area is otherwise in such a
condition as to immediately endanger the property, life, health, or safety of any
person, entity or the City, Franchisee shall immediately repair its Facilities and cure
or remedy the dangerous conditions for the protection of property, life, health, or
safety of any person, entity or the City, without first applying for and obtaining a
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permit as required by this Franchise. The Franchisee shall apply for any necessary
permits on the next day Kent City Hall is open for business.
L6.2 Whenever the construction, installation, or excavation of Facilities authorized
by this Franchise has caused or contributed to a condition that appears to
substantially impair the lateral support of the adjoining street or public place, an
adjoining public place, street utilities, city property, Rights-of-way, or private
propefty (collectively "Endangered Propefty") or endangers the public, the Director
may direct Franchisee, at Franchisee's own expense, to take reasonable action to
protect the Endangered Property or the public within a prescribed time. tf
Franchisee fails or refuses to promptly take the actions directed by the City, or fails
to fully comply with such directions, or if an emergency situation exists that
requires immediate action before the City can timely contact Franchisee to request
Franchisee effect the immediate repair, the City may enter upon the Endangered
Propefty and take such reasonable actions as are necessary to protect the
Endangered Property or the public. Franchisee shall be liable to the City for the
costs of any such repairs in accordance with the provisions of Sectlons L7.3 and
17.4.
16.3 The City shall not be liable for any damage to or loss of Facilities within the
Rights-of-Way as a result of or in connection with any public works, public
improvements, construction, grading, excavation, filling, or work of any kind in the
Rights-of-WaY bY or on behalf of the City, unless directly and proximately caused
by the negligence or willful acts of the City, its employees, contractors, or agents.
The City shall further not be liable to Franchisee for any direct, indirect, or any
other such damages suffered by any person or entity of any type as a direct or
indirect result of the City's actions under this Section 16 unless caused by the
negligence or willful acts of the city, its employees, contractors, or agents.
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L6.4 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section t7.3 and Section 17.4 for any and all costs the City
reasonably incurs in response to any emergency situation involving Franchisee's
Facilities, to the extent said emergency is not the fault of the City. The City agrees
to simultaneously seek reimbursement from any franchisee or permit holder who
caused or contributed to the emergency situation.
ECTION 77. - Recavery of Costs,.
t7 'l Franchisee shall reimburse the City for its actual and documented
administrative, legal, and other costs incurred in drafting and processing this
Franchise and all work related thereto pursuant to Rcw 35.21.960(1Xb), in an
amount not to exceed $6,000.00. No construction permits shall be issued for the
installation of Facilities authorized until the City has received this reimbursement.
L7 '2 Franchisee shall further be subject to all permit fees associated with activities
undertaken through the authority granted in this Franchise or under the laws of the
City. Where the City incurs costs and expenses for review, inspection, or
supervision of activities, including but not limited to reasonable fees associated with
attorneys, consultants, City Staff and City Attorney time, undertaken through the
authority granted in this Franchise or any ordinances relating to the subject for
which a permit fee is not established, Franchisee shall pay such costs and expenses
directly to the city in accordance with the provisions of section 17,3.
17.3 Franchisee shall reimburse the City within sixty (60) days of submittal by the
City of an itemized billing for reasonably incurred costs, itemized by project, for
Franchisee's proportionate share of all actual, identified expenses incurred by the
City in planning, constructing, installing, repairing, altering, or maintaining any City
facility as the result of the presence of Franchisee's Facilities in the Rights-of-Way.
Such costs and expenses shall include but not be limited to Franchisee's
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propoltionate cost of City personnel assigned to oversee or engage in any work in
the Rights-of-Way as the result of the presence of Franchisee's Facilities in the
Rights-of-Way. Such costs and expenses shall also include Franchisee,s
proportionate share of any time spent reviewing construction plans in order to
either accomplish the relocation of Franchisee's Facilities or the routing or rerouting
of any utilities so as not to intefere with Franchisee,s Facilities.
t7.4 The time of City employees shall be charged at their respective rate of
salary, including overtime if applicable, plus benefits and reasonable overhead. Any
other costs will be billed proportionately on an actual cost basis. All billings will be
itemized so as to specifically identify the costs and expenses for each project for
which the City claims reimbursement. A charge for the actual costs incurred in
preparing the billing may also be included in the billing. At the City,s option, the
billing may be on an annual basis, but the City shall provide the Franchisee with the
City's itemization of costs, in writing, at the conclusion of each project for
information purposes.
SECT"ION t&. - Cityb Reservation of Rioh|s,,
18.1 Franchisee represents that its Services, as authorized under this Franchise,
are a telephone business as defined in RCW 82.16.010, or that it is a service
provider as used in RCW 35.21.860 and defined in RCW 35.99.010. As a result, the
City will not impose franchise fees under the terms of this Franchise. The City
reserves its right to impose a franchise fee on Franchisee if Franchiseet Services as
authorized by this Franchise change such that the statutory prohibitions of RCW
35.21.860 no longer apply or if statutory prohibitions on the imposition of such fees
are otherwise removed. The City also reserves its right to require that Franchisee
obtain a separate franchise for a change in use, which franchise may include
provisions intended to regulate Franchisee's operations as alowed under applicable
law. Nothing contained within this Franchise shall preclude Franchisee from
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challenging any fee, this Franchise, or separate agreement under applicable federal,
State, or local laws.
t8.2 Franchisee acknowledges that ceftain of its operations within the City may
constitute a telephone business subject to the utility tax imposed pursuant to
chapter 3.18, Kent City Code. Franchisee understands that RCW 35.2L.87O
currently limits the rate of city tax upon telephone business activities to six percent
(60/o) of gross income (as that term is defined in chapter 3.18, Kent City Code),
unless a higher rate is otherwise approved. Franchisee stipulates and agrees that
certain of its business activities may be subject to taxation as a telephone business
and that Franchisee shall pay to the City the rate applicable to such taxable
seruices under chapter 3.18, Kent City Code, and consistent with state and federal
law. The parties agree however, that nothing in this Franchise shall llmit the City's
power of taxation as may exist now or as later imposed by the City. This provision
does not limit the City's power to amend chapter 3.18, Kent City Code as may be
permitted by law. Nothing in this Section 18 is intended to alter, amend, modify or
expand the taxes and fees that may lawfully be assessed on Verizon's business
activities under this franchise under applicable law.
SECTION 79. - fndemnlficationi. Lfabilitv,
19.1 General Indemnification. Franchisee shall indemnify, defend, and hold the
city, its officers, officials, boards, commissions, agents, and employees, harmless
from any action or claim for injury, damage, loss, liability, cost or expense,
including court and appeal costs and reasonable attorneys' fees or reasonable
expenses, arising from any casualty or accident to Person or propefty, including,
without limitation, damages in any way arising out of, or by reason of, any
construction, excavation, operation, maintenance, reconstruction, or any other act
done under this Franchise, by or for Franchisee, its agents, or its employees, or by
reason of any neglect or omission of Franchisee. Franchisee shall consult and
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cooperate with the City while conducting its defense of the City under this
Franchise. Franchisee shall not be obligated to indemnify the City to the extent of
the City's negligence or willful misconduct.
L9.2 Indemnification for Relocation. Franchisee shall defend, indemnify, and hold
the City harmless for any damages, claims, additional costs or reasonable expenses
and attorneys' fees, including contractor construction delay damages, assessed
against or payable by the City and arising out of or resulting from Franchisee's
negligence or willful misconduct contributing to Franchisee's failure to remove,
adjust, or relocate any of its Facilities in the Rights-of-Way in accordance with any
relocation required by the City, provided that Franchisee shall not be liable under
this section in the event Franchisee's failure to remove, adjust or relocate any of its
Facilities is the result of a force majeure event or events beyond the control of
Franchisee.
19.3 Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly notify Franchisee of such claim or action and
tender the defense of the claim or action to Franchisee, which defense shall be at
Franchisee's expense. The City's failure to so notify and request indemnification
shall not relieve Franchisee of any liability that Franchisee might have, except to
the extent that such failure prejudice Franchisee's ability to defend such claim or
suit' The City may participate in the defense of a claim, but if Franchisee provides
a defense at Franchisee's expense then Franchisee shall not be liable for any
attorneys' fees, expenses, or other costs the City may incur if it chooses to
pafticipate in the defense of a claim, unless and until separate representation as
described in Section 19.5 is required. In that event, the provisions of Section 19.5
shall govern Franchisee's responsibility for City's attorney's fees, expenses, or other
costs. In any event, Franchisee may not agree to any settlement of claims
affecting the City without the City's consent, such consent not to be unreasonable
withheld or delayed.
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L9.4 Avoidance.
a. Inspection or acceptance by the city of any work performed by
Franchisee at the time of completion of construction shall not be
grounds for avoidance by Franchisee of any of its obligations under
this Section 19.
b' The fact that Franchisee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of
or defense to Franchisee's duty of defense and indemnification under
this subsection.
19.5 Expenses. If separate representation to fully protect the interests of both
pafties is or becomes necessary, such as a conflict of interest between the City and
the counsel selected by Franchisee to represent the City, Franchisee shall pay, from
the date such separate representation is required forward, all reasonable expenses
incurred by the City in defending itself with regard to any action, suit, or proceeding
subject to indemnification by Franchisee. Provided, however, that in the event that
such separate representation is or becomes necessary, and the City desires to hire
counsel or any other outside experts or consultants and desires Franchisee to pay
those expenses, then the City shall be required to obtain Franchisee's consent to
the engagement of such counsel, experts, or consultants, such consent not to be
unreasonably withheld. The City's expenses shall include all reasonable
out-of-pocket costs and expenses, such as consultants' fees and court costs, but
shall not include outside attorneys' fees for services that are unnecessarily
duplicative of services provided the City by Franchisee, except in the event of a
conflict of interest where such duplication may be required. Each party agrees to
cooperate and to cause its employees and agents to cooperate with the other party
in the defense of any claim or action.
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19.6 RCW 4.24.11.5. The parties acknowledge that this Franchise is subject to
RCW 4.24.115. Accordingly, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of Franchisee and the City, its officers, officials, employees,
and volunteers, Franchisee's liability shall be only to the extent of Franchiseet
negligence' It is further specifically and expressly understood that the
indemnification provided constitutes Franchisee's waiver of immunity under Title 51
RCW, solely for the purposes of this indemnification. This waiver has been mutually
negotiated by the parties.
L9.7 Survival. The provisions of this Section 19 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 20. - fnsurance.
20.L Policies. Franchisee shall maintain in full force and effect at its own cost and
expense each of the following policies of insurance:
a. Commercial General Liability insurance with limits of no less than
$5,000,000 per occurrence and 95,000,000 general aggregate.
Coverage shall be at least as broad as that provided by ISO CG OO 01
L/96 or its equivalent and include severability of interests. Such
insurance shall name the City, its officers, officials and employees as
additional insureds per ISO CG 2026 or its equivalent. There shall be
a waiver of subrogation and rights of recovery against the City, its
officers, officials and employees. Coverage shall apply as to claims
between insureds on the policy, if applicable. Coverage may take the
form of a primary layer and a secondary or umbrella layer, but the
combination of layers must equal $5,000,000 at a minimum.
b. Commercial Automobile Liability insurance with minimum combined
single limits of $5,000,000.00 each occurrence with respect to each of
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Franchisee's owned, hired and non-owned vehicles assigned to or used
in the operation of the Facilities in the city. The policy shall contain a
severability of interests provision.
workers' compensation coverage as required by the Industrial
Insurance laws of the state of washington and employer,s liability with
a limit of $1,000,000 each accident/disease/policy limit.
20-2 Deductibles/Certificate of Insurance. Any deductible of the policies shalt not
in any way limit Franchisee's liability to the City.
20'3 Requirements. All policies shall contain, or shall be endorsed so that:
a. The city, its officers, officiars, boards, commissions, employees, and
agents are to be covered ds, and have the rights of , additional
insureds with respect to liability arising out of activities peformed by,
or on behalf of, Franchisee under this Franchise or Applicable Law, or
in the construction, operation or repair, or ownership of the Cable
System;
b. Franchisee's insurance coverage shall be primary insurance with
respect to the City, its officers, officials, boards, commissions,
employees, and agents, Any insurance or self-insurance maintained
by the city, its officers, officials, boards, commissions, employees, and
agents shall be in excess of the Franchisee's insurance and shall not
contribute to it; and
c. Franchisee's insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to the
limits of the insurer's liability.
2Q.4 Acceptability of Insurers. The insurance obtained by Franchisee shall be
placed with insurers with a Best's rating of no less than "A VII.',
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c
20'5 Verification of Coverage. The Franchisee shall furnish the City with
certificates of insurance and endorsements or a copy of the page of the policy
reflecting blanket additional insured status. The certificates and endorsements for
each insurance policy are to be signed by a Person authorized by that insurer to
bind coverage on its behalf. The certificates and endorsements for each insurance
policy are to be on standard forms or such forms as are consistent with standard
industry practices.
20.6 Maintenance of Insurance, Franchisee's maintenance of insurance as
required by this Section 20 shall not be construed to limit the liability of Franchisee
to the coverage provided by such insurance, or otherwise limit the City's recourse
to any remedy available at law or equity. Further, Franchisee's maintenance of
insurance policies required by this Franchise shall not be construed to excuse
unfaithful performance by Franchisee.
SECTION 27, - Abandonment of Franchiseeb Telecommwlications
Network' Upon the expiration, termination, or revocation of the rights granted
under this Franchise, Franchisee shall remove all of its Facilities from the Rights-of-
Way within thitty (30) days of receiving written notice from the Director. The
Facilities, in whole or in part, may not be abandoned by Franchisee without written
approval by the City. Any plan for abandonment or removal of Franchisee's
Facilities must be first approved by the Director, and all necessary permits must be
obtained prior to this work. The plan for abandonment shall include a proposal and
instruments for transferring ownership to the City. Any Facilities that are not
permitted to be abandoned in place and that are not removed within thirty (30)
days of receipt of City's notice shall automatically become the property of the City.
Except that nothing contained within this Section 21 shall prevent the City from
compelling Franchisee to remove any such Facilities through judicial action when
the City has not permitted the Franchisee to abandon the Facilities in place. The
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provisions of this Section 21 shall survive the expiration, revocation, or termination
of this Franchise.
SECTION 22. - Bonds,
22.1 Cqnstruction Guarantee. As a condition of performing work in the Right-of-
Way, the timely, complete, and faithful performance of all construction work in the
Right-of-Way shall be guaranteed in an amount equal to one hundred twenty five
percent (L25o/o) of the cost estimate (prepared by a licensed contractor,
professional engineer, or architect) of the construction work, by either the
Franchisee or the Franchisee's contractor performing the actual construction work,
The guarantee may be by performance bond or irrevocable letter of credit, or cash
deposit, as may be determined by the Franchisee or the Franchisee's contractor. If
Franchisee, in the sole judgment of the City, has a history of corrections or
defaults, Franchisee must provide the full guarantee by assignment of funds. These
funds shall guarantee the following: (1) timely completion of construction; (2)
construction in compliance with all applicable plans, permits, technical codes, and
standards; (3) proper location of the Facilities as specified by the City; (4)
restoration of the Rights-of-Way and other City properties affected by the
construction; (5) submission of as-built drawings after completion of construction;
and (6) timely payment and satisfaction of all claims, demands, or liens for labor,
materials, or services provided in connection with the work that could be asserted
against the City or City property. The guarantee must remain in full force until the
completion of construction, including final inspection, corrections, and final approval
of the work, recording of all easements, provision of as-built drawings, and the
posting of a maintenance guarantee as described in Section 22.2. Compliance with
the peformance guarantee requirement of the City's current Design and
construction standards shall satisfy the provisions of this Section 22.L.
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City of Kent - EXTENET SYSTEMS, INC
2020 Franchise Agreement
22.2 Maintenance Guarantee, Maintenance and the successful operation of the
Right-of-Way improvements shall be bonded for a period of at least two (2) years
(or other period as required by Kent City Code) from the date of final construction
approval. The bond shall be in an amount to be determined by the City. The
minimum maintenance guarantee shall be Five Thousand Dollars (g5,000.00) or
twenty percent (2oo/o) of the original performance construction guarantee as
described in Section 22.L, whichever is greater. At six (6)-month intervals during
this malntenance period, the City will inspect the improvements and identify to
Franchisee any noted deficiencies. Franchisee will have thifty (30) days to correct
any deficiencies. The satisfactory correction of the work may commence a new two
(2)-year maintenance period for the improvements as corrected, as determined by
the City. The City will initiate collection against the financial guarantee if
deficiencies are not satisfactorily addressed by the end of the thirty (30)-day
response period. Compliance with the maintenance guarantee requirement of the
City's current Design and Construction Standards shall satisfy the provisions of this
Section 22.2. Original financial guarantee amounts described in Section 22.t and
this Section 22.2 may be reduced one time only prior to the maintenance period, at
the discretion of the City. If an extension to any associated permits are granted,
the financial guarantees may be increased based on an updated engineer's cost
estimate or as determined by the City. Financial guarantees will be fully released
only after all final punchlist items are accomplished, final construction approval, and
the elapse of the two (2)-year maintenance guarantee period with all corrective
actions complete and accepted by the City.
22.3 Franchise Bond. Franchisee shall provide City with a bond in the amount of
Twenty-Five Thousand Dollars (925,000.00) ("Franchise Bond") running or
renewable for the term of this Franchise, in a form and substance reasonably
acceptable to City. If Franchisee fails to substantially comply with any one or more
of the provisions of this Franchise, following written notice and a reasonable
opportunity to cure, then there shall be recovered jointly and severally from
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City of Kenf - EXTENET SYSTEMS, INC
2020 Fra nch ise Ag reement
Franchisee and the bond any actual damages suffered by City as a result thereof,
including but not limited to staff time, material and equipment costs, compensation
or indemnification of third parties, and the cost of removal or abandonment of
Facilities. Franchisee specifically agrees that its failure to comply with the terms of
this Section 22.4 will constitute a material breach of this Franchise, subject to the
notice and cure provisions of Section 23.2. Franchisee further agrees to replenish
the Franchise Bond within thirty (30) days after written notice from the City that
there is a deficiency in the amount of the Franchise Bond. The amount of the
Franchise Bond shall not be construed to limit Franchisee's liability or to limit the
City's recourse to any remedy to which the City is otherwise entitled at taw or in
equity.
22.4 Form of Bonds. All bonds provided to the City under this Section 22 shall be
on forms provided by the City and with sureties registered with the Washington
State Insurance Commissioner or other financial institutions acceptable to the City.
SECTION 23. - Remedies to Enforce Compliqnce.
23'L In addition to any other remedy provided in this Franchise, the City reserves
the right to pursue any remedy available at law or in equity to compel or require
Franchisee and/or its successors and assigns to comply with the terms of this
Franchise. The pursuit of any right or remedy by the City shall not prevent the City
from thereafter declaring a revocation for breach of the conditions. In addition to
any other remedy provided in this Franchise, Franchisee reserves the right to
pursue any remedy available at law or in equity to compel or require the City, its
officers, employees, volunteers, contractors and other agents and representatives,
to comply with the terms of this Franchise. Further, all rights and remedies
provided in this Franchise shall be in addition to and cumulative with any and all
other rights and remedies available to either the City or Franchisee. Such rights
and remedies shall not be exclusive, and the exercise of one or more rights or
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City of Kent - EXTENET SYSTEMS, INC
2020 Franchise Agreement
remedies shall not be deemed a waiver of the right to exercise at the same time or
thereafter any other right or remedy. Provided, fufther, that by entering into this
Franchise, it is not the intention of the City or Franchisee to waive any other rights,
remedies, or obligations as provided by law, equity or otherwise, and nothing
contained in this Franchise shall be deemed or construed to effect any such waiver.
The pafties reserve the right to seek and obtain injunctive relief with respect to this
Franchise to the extent authorized by applicable law. The execution of this
Franchise shall not constitute a waiver or relinquishment of this right. The parties
agree that if a party obtains injunctive relief, neither party shall be required to post
a bond or other security and the parties agree not to seek the imposition of such a
requirement.
23.2 If either party violates or fails to comply with any of the provisions of this
Franchise or a permit issued as required by Section 9.3, or should it fail to heed or
comply with any notice given to such party under the provisions of this Franchise
(the "Defaulting Pafty"), the other party (the "Non-defaulting party") shall provide
the Defaulting Party with written notice specifying with reasonable particularity the
nature of any such breach and the Defaulting Party shall undertake all commercially
reasonable efforts to cure such breach within thirty (30) days of receipt of
notification. If the Non-defaulting Party reasonably determines the breach cannot
be cured within thirty (30) days, the Non-defaulting Party may specify a longer cure
period, and condition the extension of time on the Defaulting Party's submittal of a
plan to cure the breach within the specified period, commencement of work within
the original thirty (30)-day cure period, and diligent prosecution of the work to
completion, If the breach is not cured within the specified time, or the Defaulting
Party does not comply with the specified conditions, the Non-Defaulting Party may
pursue any available remedy at law or in equityas provided in Section 23.1, or in
the event Franchisee has failed to timely cure the breach, the City, at its sole
discretion, may electto: (1) revoke this Franchise pursuantto Section 2a; Q) claim
damages of Two Hundred Fifty Dollars ($250.00) per day against Franchisee (and
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City of Kent - EXTENET SYSTEMS, INC
2020 Fra nchise Agreement
collect from the Franchise Bond if necessary); or (3) extend the time to cure the
breach if under the circumstances additional time is reasonably required.
SECTION 24. - Revocatlon. If Franchisee willfully violates or fails to
comply with any material provisions of this Franchise, the City may revoke this
Franchise after (1) providing at least thirty (30) days'written notice to Franchisee
specifying the alleged violation or failure; and (2) holding a hearing before City
Council. This hearing shall be open to the public and Franchisee and other
interested parties may offer written and/or oral evidence explaining or mitigating
such alleged noncompliance. Within thirty (30) days after the hearing, the Kent
City Council, on the basis of the record, shall make the determination as to whether
there is cause for revocation, whether the Franchise will be terminated, or whether
lesser sanctions should otherwise be imposed. The Kent City Council may in its sole
discretion fix an additional time period to cure violations. If the deficiency has not
been cured at the expiration of any additional time period or if the Kent City Council
does not grant any additional period, the Kent City Council may by resolution
declare the Franchise to be revoked and forfeited or impose lesser sanctions. If
Franchisee appeals revocation and termination, such revocation may be held in
abeyance pending iudicial review by a court of competent jurisdiction, provided
Franchisee is otherwise in compliance with the Franchise.
ECTION 25, - Non-WaUer. The failure of either party to insist upon strict
performance of any of the covenants and agreements of this Franchise or to
exercise any option conferred in any one or more instances shall not be construed
to be a waiver or relinquishment of any such covenants, agreements, or option or
any other covenants, agreements or option.
SECTION 26. - Police Fowers and Cltv Reoulatians, Nothing within this
Franchise shall be deemed to restrict the City's ability to adopt and enforce all
necessary and appropriate ordinances regulating the performance of the conditions
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City of Kenf - EXTENET SYSTEMS, INC
2020 Franchise Agreement
of this Franchise, including any valid ordinance made in the exercise of its police
powers in the interest of public safety and for the welfare of the public. The City
shall have the authority at all times to reasonably control by appropriate
regulations,-consistent with 47 U,S.C. S 253, the location, elevation, manner of
construction, and maintenance of any Facilities by Franchisee, and Franchisee shall
promptly conform with all such regulations, unless compliance would cause
Franchisee to violate other requirements of law. The City reserves the right to
promulgate any additional regulations of general applicability as it may find
necessary in the exercise of its lawful police powers consistent with 47 U.S.C. g
253' In the event of a conflict between the provisions of this Franchise and any
other ordinance(s) enacted under the City's police power authority, such other
ordinances(s) shall take precedence over this Franchise.
SECTION 27. - Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
sEcTroN 28. Acceptance, This Franchise may be accepted by
Franchisee by its filing with the City Clerk of an unconditional written acceptance,
within sixty (60) days from the City's execution of this Franchise, in the form
attached as Exhibit A. Failure of Franchisee to so accept this Franchise shall be
deemed a rejection by Franchisee and the rights and privileges granted shall cease.
In addition, Franchisee shall file the certificate of insurance and the additional
insured endorsements obtained pursuant to Section ZO, any construction
guarantees, if applicable, pursuant to Section 22.L, the Franchise Bond required
pursuant to Section 22.3, and the costs described in section 17.1.
sEcrroM 29. - surulval. Ail of the provisions, conditions, and
requirements of Section 5, Section 5, Section 9, Section 15, Section 19, Section 21,
and this Section 29 of this Franchise shall be in addition to any and all other
obligations and liabilities Franchisee may have to the City at common law, by
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City of Kent - EXTENET SYSTEMS, INC
2020 Franchise Agreement
statute, or by contract, and shall survive this Franchise, and any renewals or
extensions, to the extent provided for in those sections, All of the provisions,
conditions, regulations, and requirements contained in this Franchise shall further
be binding upon the successors, executors, administrators, legal representatives,
and assigns of Franchisee and all privileges, as well as all obligations and liabilities
of Franchisee shall inure to its successors and assigns equally as if they were
specifically mentioned where Franchisee is named.
sEcrroU 30, - Assignme4t anC chan?es of ewnerchip or control.
30' 1 This Franchise may not be directly or indirectly assigned, transferred, or
disposed of by sale, lease, merger, consolidation or other act of Franchisee, by
operation of law or otherwise, unless approved in writing by the City, which
approval shall not be unreasonably withheld, conditioned or delayed. The above
notwithstanding, Franchisee may freely assign this Franchise in whole or in paft to
a parent, subsidiary, or affiliated entity, unless there is a change of control as
described in Section 30.2 to an entity that does not have the similar or better
financial worth, as Franchisee, as of the date of such assignment or change
Franchisee shall provide prompt, written notice to the City of any such assignment.
In the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall not be
required unless and until the secured party elects to realize upon the collateral. For
purposes of this Section 30, no assignment or transfer of this Franchise shall be
deemed to occur based on the public trading of Franchisee's stock; provided,
however, any tender offer, merger, or similar transaction resulting in a change of
control shall be subject the provisions of this Franchise.
3O.2 Any transactions that singularly or collectively result in a change of more
than fifty percent (50o/o) of the: ultimate ownership or working control of
Franchisee, ownership or working control of the Facilities, ownership or working
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City of Kent - EXTENET SYSTEMS, INC
2O2O Franchise Agreement
control of affiliated entities having ownership or working control of Franchisee or of
the Facilities, or of control of the capacity or bandwidth of Franchisee's Facilities,
shall be considered an assignment or transfer requiring City approval. Transactions
between affiliated entities are not exempt from City approval if there is a change in
control as described in the preceding sentence. Franchisee shall promptly notify
the City prior to any proposed change in, or transfer of, or acquisition by any other
party of control of Franchisee.
30.3 Franchisee may, without prior consent from the City: (1) lease the Facilities,
or any portion, to another person; (21 grant an indefeasible right of user interest in
the Facilities, or any portion, to another person; or (3) offer to provide capacity or
bandwidth in its Facilities to another person, provided further, that Franchisee shall
at all times retain exclusive control over its Facilities and remain fully responsible
for compliance with the terms of this Franchise. Franchisee's obligation to remain
fully responsible for compliance with the terms under this Section 30.3 shall survive
the expiration of this Franchise but only if and to the extent and for so long as
Franchisee is still the owner or has exclusive control over the Facilities used by a
third party.
SECTION 37' - Eptire Asreement, This Franchise constitutes the entire
understanding and agreement between the parties as to the subject matter within
this Franchise and no other agreements or understandings, written or otherwise,
shall be binding upon the parties upon execution of this Franchise.
SECTION 32. - Eminent Domain. The existence of this Franchise shall not
preclude the City from acquiring by condemnation in accordance with applicable
law, all or a portion of Franchisee's Facilities for the fair market value. In
determining the value of such Facilities, no value shall be attributed to the right to
occupy the area conferred by this Franchise.
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City of Kent - EXTENET SYSTEMS, INC
2A2O Fra nch ise Ag reement
sEcrroU-g3. - vacafion, If at any time the city, by ordinance and in
accordance with applicable laws, vacates all or any portion of the area affected by
this Franchise, the City shall not be liable for any damages or loss to the Franchisee
by reason of such vacation. The City shall notify Franchisee in writing not less than
sixty (60) days before vacating all or any portion of any such area. The City will, if
practicable, reserve an easement for Franchisee's telecommunications network
under the same terms and conditions as this Franchise at the location vacated by
city, and if not practicable, the city may, after sixty (60) days, written notice to
Franchisee, terminate this Franchise with respect to such vacated area.
ECTION 34. - Notice. Any notice or information required or permitted to
be given to the parties under this Franchise shatl be sent to the following addresses
unless otherwise specified by personal delivery, overnight mail by a nationally
recognized courier, or by U.S. ceftified mail, return receipt requested and shall be
effective upon receipt or refusal of delivery:
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
Company Address:
EXTENET SYSTEMS, INC
Attn: CFO
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
With copy to General Counsel & COO at same address
Copy email to NOTlCE@extenetsystems.com
SECTION 34 - Severabllity. If any section, sentence, clause, or phrase of
this Franchise should be held to be invalid or unconstitutional by a court of
competent jurisdiction, such invalidity or unconstitutionality shall not affect the
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City of Kent - EXTENET SYSTEUS, INC
2020 Franchise Agreement
validity or constitutionality of any other section, sentence, clause, or phrase of this
Franchise unless such invalidity or unconstitutionality materially alters the rights,
privileges, duties, or obligations, in which event either party may request
renegotiation of those remaining terms of this Franchise materially affected by such
court's ruling.
SECTION 36,. - Compliance with all Aoolicable Laws. Each party agrees
to comply with all present and future federal, state, and local laws, ordinances,
rules, and regulatlons. This Franchise is subject to ordinances of general
applicability enacted pursuant to the City's police powers. The City reserues the
right at any time to amend this Franchise to conform to any enacted, amended, or
adopted federal or state statute or regulation relating to the public health, safety,
and welfare, or relating to roadway regulation, or a City ordinance enacted
pursuant to such federal or state statute or regulation, when such statute,
regulation, or ordinance necessitates this Franchise be amended in order to remain
in compliance with applicable laws, but only upon providing Franchisee with thirty
(30) days' written notice of its action setting forth the full text of the amendment
and identifying the statute, regulation, or ordinance requiring the amendment. This
amendment shall become automatically effective upon expiration of the notice
period unless, before expiration of that period, Franchisee makes a written request
for negotiations regarding the terms of the amendment. If the parties do not reach
agreement as to the terms of the amendment within thirty (30) days of the call for
negotiations, either party may pursue any available remedies at law or in equity.
Nothing shall preclude either party from challenging the lawfulness of any provision
of this Franchise under state or federal law.
SECTION 37, - Attornev's Fees. If a suit or other action is instituted in
connection wlth any controversy arising out of this Franchise, each party shall pay
all its legal costs and attorney fees incurred in defending or bringing such claim or
lawsuit, including all appeals, in addition to any other recovery or award provided
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City of Kent - EXTENET SYSTEMS, INC
2020 Franchise Agreement
by law; except that nothing in this section shall be construed to limit the City,s right
to indemnification under Section 19 of this Franchise.
SECTION 38. - Hazardous Substenceg, Franchisee shall not introduce or
use any hazardous substances (chemical or waste), in violation of any applicable
law or regulation, nor shall Franchisee allow any of its agents, contractors, or any
person under its control to do the same. Franchisee will be solely responsible for
and will defend, indemnify, and hold the City, its officers, officials, employees,
agents, and volunteers harmless from and against any and all claims, costs, and
liabilities including reasonable attorney fees and costs, arising out of or in
connection with the cleanup or restoration of the property to the extent caused by
Franchisee's use, storage, or disposal of hazardous substances, whether or not
intentional, and the use, storage, or disposal of such substances by Franchisee,s
agents, contractors, or other persons acting under Franchisee's control, whether or
not intentional. Franchisee shall have only that responsibility or liability for
managing, monitoring, or abating a hazardous condition that it may have under
state or federal law and this Franchise shall not be interpreted to expand
Franchisee's legal obligations relating to any pre-existing hazardous substances
undisturbed by Franchisee.
SECTION 39. - Licenses. Fees and Taxes, Prior to constructing any
Facilities or providing Services within the City, Franchisee shall obtain a business or
utility license from the City, if so required. Franchisee shall pay all applicable taxes
on personal propefty and Facilities owned or placed by Franchisee in the Rights-of-
Way and shall pay all applicable license fees, permit fees, and any applicable tax
unless documentation of exemption is provided to the City and shall pay utility
taxes and license fees properly imposed by the City under this Franchise. However,
nothing in this Franchise is intended to alter, amend, modify or expand the taxes
and fees that may lawfully be assessed on Franchisee's business activities under
applicable law.
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City of Kenf - EXTENET SYSTEMS, rNC
2020 Franch ise Agreement
ECTfON 40. - Itliscellaneous.
40.L The City and Franchisee respectively represent that their respective
signatories are duly authorized and have full right, power, and authority to execute
this Franchise on such party's behalf.
40.2 This Franchise shall be construed in accordance with the laws of the State of
Washington. The United States District Court for the Western District of
Washington, and King County Superior Court have proper venue for any dispute
related to this Franchise.
4O.3 Section captions and headings are intended solely to facilitate the reading of
this Franchise. These captions and headings shall not affect the meaning or
interpretation of the text within this Franchise.
40.4 Where the context so requires, the singular shall include the plural and the
plural includes the singular.
40.5 Franchisee shall be responsible for obtaining all other required approvals,
authorizations, and agreements from any party or entity and it is acknowledged and
agreed that the City is making no representation, warranty, or covenant whether
any of the foregoing approvals, authorizations, or agreements are required or have
been obtained by Franchisee.
40.6 This Franchise is subject to all applicable federal, State and local laws,
regulations and orders of governmental agencies as amended, including but not
limited to the Communications Act of L934, as amended, the Telecommunications
Act of 1996, as amended, and the Rules and Regulations of the FCC. Neither the
City nor Franchisee waive any rights they may have under any such laws, rules or
regulations.
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City of Kent - EXTENET SYSTEMS, INC
2020 Franchise Agreement
40.7 There are no third party beneficiaries to this Franchise.
40.8 This Franchise may be enforced at both law and in equity.
IN WITNESS WHEREOF, this Franchise is signed in the name of the city of
Kent, Washington this day of 2420.
ATTEST:CTTY OF KENT, WASHINGTON:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
Accepted and approved this t3 day otfuysL-,2020.
ATTEST:EXTENET SYSTEMS, INC
/,L
lic Notary
M4
Namefiitle
tttf7 - Ccoef,ar Canvt4
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City of Kenf - EXTENET SYSTEMS, INC
2O2O Franchise Agreement
11th September
EXHIBIT A
STATEM ENT OF ACCEPTANCE
EXTENET sYsrEMs, rNc, a Delaware corporation, ("ExteNet") for itself, its
successors and assigns, accepts and agrees to be bound by all lawful terms,
conditions and provisions of the Franchise attached and incorporated by thisreference. ExteNet declares that it has carefully read the terms and cond-itions
of this Franchise and unconditionally accepts all of the terms and conditions ofthe Franchise and agrees to abide by such terms and conditions. ExteNet has
relied upon its own investigation of all relevant facts and it has not been inducedto accept this Franchise and it accepts all reasonable risks related to the
interpretation of this Franchise.
ExteNet Systems, Inc., a Delaware corporation
By:Date:
Name:
Title:GE t (
CERTIFICATE OF LIABILITY INSURANCE
COVERAGES CERTIFICATE NUMBER: 1 8s629727 4 REVISION NUMBER:
DATE (MM/DD/YYYY)
7t13t2020
THIS c ERTIFICATE rs ts SU ED AS A MATTER OF INFO RMA Tto N ON LY AN D CONFE RS NO RIGHTS UPON THE c ERTIFICA TE HO L DE R.TH tsCERTIFICATEDOESNOTAFFIRMATIVELYORNEGATIVELYAMEND,EXTE N D OR ALTER TH COVE RAG E AFFORDED BY THE POLTCtES
LOW TH IS CE RTIFICA TE OF IN SURANCE DOES NOT CONSTITUTE A CONTRACT BETWE EN THE lss UING tNs U RER(S),AUTH ORIZEDREPRESENTATIVEORPRODUcER,AN D THE CERTI FICATE HOLDER.
IMPORTANT: lf the certificate holder is an INSURED,the policy(ies) must have ADDTTIONAL INS provisions or be endorsedlf SUBROGATION lS WAIVED, subject to the terms and conditions
this certificate does not confer rights to the certificate holder in lieu
of the policy, certain policies may require an endorsement. A statement on
of such endorsement(s).
PRODUCER
lMA, lnc. - Dallas Division
6200 LBJ Freeway
Suite 200
Dallas TX 75240
CONTACT .,
NAIITE:_ 1494gan Rlcnenberger
f
H3\Eo. e'rr, 97 2-458-87 oo ftI. *o,, 972-458-8755
com
INSURER(S) AFFORDING COVERAGE NAIC #
rNsuRER A : Valley Forge lnsurance Co.20508
INSURED EXTESYS
FILeltgt S_y.steps lnc; ExteNet Systems (California),
LLC; ExteNet Systems New York lnc; ExteNet Svsfems
(Virginia) - 3030 Warrenville Rd., 3rd FL
Lisle lL 60532
rNsuRER B : National Fire lns. Company of Hartford 20478
TNSURERC : cOntinental lnsurance companv 35289
TNSURER D : Markel American lnSurance companv 28932
rNsuRER E : American Casualty Co. of Readinq, PA 20427
INSURER F:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIODINDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTMCT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURAN CE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SU BJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR TYPE OF INSURANCE POLICY NlIMBFR POLICY EFF
IMM/DD/YVYY}POLICY EXP
LIMITS
X COMMERCIAL GENERAL LIABILITY
CLAIMS.I\4ADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PRO-
JECT LOC
X
X X
Y Y 4013130714 11212020 11212021 EACH OCCURRENCE $ 1,000,000
AUE IUKTNIEU
MISFS lFa nnnttrrenca\$ 1,000,000
MED EXP (Anv one person)$ 1 5,000
PERSONAL & ADV INJURY $ 1,000,000
GENERAL AGGREGATE $ 2,000,000
PRODUCTS. COMP/OP AGG $ 2,000,000
$
B AUTOMOBILE LIABILITY
ANY AUTO
OWNED
AUTOS ONLY
HIRED
AUTOS ONLY
SCHEDULED
AUTOS
NON.OWNED
AUTOS ONLYXX
Y Y 40'1 3'130681 11212020 11212021 $ 1,000,000
BODILY INJURY (Per person)$
BODILY INJURY (Per accident)$
$
$
c X UMBRELLA LIAB
EXCESS LIAB
X OCCUR
CLAIMS-I\,IADE
Y Y 60s687'1852 1t2t2020 1121202'l EACH OCCURRENCE $ 25,000.000
AGGREGATE $ 25.000.000
DFD X RETENTION$ orn nnn $
E
E
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
ANYPROPRI ETOFVPARTNEFYEXECUTIVE
OFFICER/MIEMBER EXCLUDED?
(Mandatory in NH)
lf yes, describe under
DESCRIPTION OF OPERATIONS below
N N/A
6056871 821
6056871 849
112t2020
'v2t2020
1t2t2021
11212021
PtsK
STATUTE
orH-
FR
E,L. EACH ACCIDENT $ 1,000,000
E.L. DISEASE - EA EMPLOYEE $ 1,000,000
E,L, DISEASE - POLICY LIMIT $ 1.000.000
D NETWORK ASSETS lvlKLM5tM0051 560 'll2/2020 1t2t2021 LilVilT 000
CERTIFICATE HOLDER CANCELLATION
City of Kent
Attn: City Clerk
220 Fourth Avenue South
Kent WA 98032
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORETHE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
/ //,
o 1988-201 5 ACORD CORPORATTON. AIt rights reserved.
ACORD 2s (2016t031 The ACORD name and logo are registered marks of ACORD
CNA CNA PARAMOUNT
Blanket Additional lnsured - Owners, Lessees or
Contractors - with Products-Completed
Operations Coverage Endorsement
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
It is understood and agreed as follows:
l. The WHO lS AN INSURED section is amended to add as an lnsured any person or organization whom the Named
lnsured is required by written contract to add as an additional insured on this coverage part, including any such
person or organization, if any, specifically set forth on the Schedule attachment to this endorsement. However, such
person or organization is an lnsured only with respect to such person or organization's liability for:
A. unless paragraph B. below applies,
l. bodily injury, property damage, or personal and advertising injury caused in whole or in part by the acts
or omissions by or on behalf of the Named lnsured and in the performance of such Named lnsured's
ongoing operations as specified in such written contract; or
2. bodily injury or property damage caused in whole or in part by your work and included in the products-
completed operations hazard, and only if
a. the writton contract requires the Named lnsured to provide the additional insured such coverage; and
b. this coverage part provides such coverage.
B. bodily injury, property damage, or personal and advertising injury arising out of your work described in such
wriften contract, but only if:
l. this coverage part provides coverage for bodily injury or property damage included within the products
completed operations hazard; and
2. the writt€n contract speciflcally requires the Named lnsured to provide additional insured coverage under
the 1 'l-85 or 10-01 edition of CG2010 or the 10-01 edition of CG2037.
ll. Subject always to the terms and conditions of this policy, including the limits of insurance, the lnsurer will not provide
such additional insured with:
A. coverage btoader than required by the written contract; or
B, a higher limit of insurance than required by the written contract.
lll, The insurance granted by this endorsement to the additional insured does not apply to bodily injury, property
damago, or porsonal and advertising injury arising out of:
A. the rendering of, or the failure to render, any professional architectural, engineering, or surveying services,
including:
1. the preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys,
field orders, change orders or drawings and specifications; and
2. supervisory, inspection, architectural or engineering activities; or
B. any premises or work for which the additional insured is specifically listed as an additional insured on another
endorsement attached to this coverage part.
lV. Notwithstanding anything to the contrary in the section entitled COMMERCIAL GENERAL LIABILITY CONDITIONS,
the Condition entitled Other lnsuranco, this insurance is excess of all other insurance available to the additional
insured whether on a primary, excess, contingent or any other basis. However, if this insurance is required by written
cNA75079XX (1.15)
Page 1 of2
Policy
Endorsemenl
No: 4013130714
No: I
The Continental Insurance Co.
Insured Name: EX?ENEI SYSTEMS, INC.
Copydght CNA All Rlghl6 Rsffved. lnclud€s @py.ighted mterla, ol lnsuErce Seryhec Ollt@. lno., with lts psmi$lm,
CNA CNA PARAMOUNT
Blanket Additional lnsured - Owners, Lessees or
Gontractors - with Products-Gompleted
Operations Coverage Endorsement
contract to be primary and non-contributory, this insurance will be primary and non-contributory relative solely to
insurance on which the additional insured is a named insured.
V, Solely with respect to the insurance granted by lhis endorsement, the section entitled COMMERCIAL GENEML
LIABILITY CONDITIONS is amended as follows:
The Condition entitled Duties ln The Event of Occurrenee, Offense, Claim or Suit is amended with the addition
of the following:
Any additional insured pursuant to this endorsement will as soon as practicable:
i, give ihe insurer writien noiice of any ciaim, or any occurr€ne€ or ofiense wtrich rrray resuli irr a claim;
2. except as provided in Paragraph lV. of this endorsement, agree to make available any olher insurance the
additional insurcd has for ony looo covorod undor thie covorago part;
3. send the lnsurer copies of all legal papers received, and otherwise cooperate with the lnsurer in the
investigation, defense, or setllement of the claim; and
4. tender the defense and indemnity of any claim to any other insurer or self insurer whose policy or program
applies to a loss that the lnsurer covers under thrs coverage pan. However, I lne wnttsn contract requrres
ihis insurance to be primary and non-contributory, this paragraph (4) does not apply to insurance on which
the addiiional insured is a named insured.
The lnsurer has no duty to defend or indemnify an additional insured under this endorsement until the lnsurer
receives written notice of a claim from the additional insured.
Vl. Solely with respect to the insurance granted by this endorsement, the section entitled DEFINITIONS is amended to
add the following definition:
Wriften contract means a written contract or written agreement that requires the Named lnsured to make a person
or organization an additional insured on this coverage part, provided the contract or agreement:
A. is currently in effect or becomes effective during the term of this policy; and
B. was executed prior to:
1. the bodily injury or property damage; or
2. the offense that caused the personal and advertising injury
for which the additional insured seeks coverage.
Any coverage granted by this endorsement shall apply solely to the extent petmissible by law.
All other terms and conditions of the Policy remain unchanged.
This endorsement, which forms a part of and is for attachment to the Policy issued by the designated lnsurers, takes effect
on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and
expires concurrentlv with said PolicV.
CNA7507SXX(1-15) Policy No: {013130714
Page2otz Endorsemenl No: I
The CorrEinenLal Insurance Co.
lnsuredName:EXTENET sYsrEMs, TNc,
Copyr{ht CNA All Rights R€eNd- lnd&3 @pyrightsd materiat of lreurarco SeDlFs Office. lnc-, with k p€misis.
-
-
:
CT(A CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
It is understood and agreed that this endorsement amends the GOMMERGIAL GENERAL LIABILITY COVERAGE PART
as follows. lf any other endorsemenl attached to this policy amends any provision also amended by this endorsement,
then that other endorsement controls with respect to such provision, and the changes made by lhis endorsement with
respect lo such provision do not apply.
CNA74705XX(1,15) PolicyNo: 4013130?14
Page 1 of 17 Endorsemenl No: 5lhe Continent.al Insurance Co.
lnsured Name: EXTENE'I gYsTSt{S, INC.
Copyright CilA All Rlghts Reew€d. lnclodes @pyrighted mtedal ot lnsuErce Seryk€s Olfre, lnc., Mlh ib pqmieslm,
TABLE OF CONTENTS
l. Addliionel lnsureds
2. Addlllonal lnsurod . Frimary And Non{ontributory To Addltlonal lneured's lnsurance
3. Bodily lnjury - Expanded Definition
4. Broad Knowlodge ol Occurencs/ Notlco of Occurrence
5. Broad Named lnsured
6. Broadened Liability Coverage For Damage To Your Product And Your Work
7, ContractualLlablllty.Rallroadr
8. Electronic oata Liabilfiy
9. Estat€s, Legal Representalivos and Spouses
10. Expected Or lntended lnjury - Exception for Reasonable Forco
11. General Aggrsgat€ Llmits of lnsurancs - Per Projoct
12. ln Rem Actions
{3. lncidental Health Care Malpractice Coverage
14. Joint Ventures/Partnership/Limited Liability Companies
15. Legal Liabi
Custody or
lity - Damage To Premlses / Alienated Premises / Property ln The Named lnsured's Care,
Control
16. Liquor Liability
17. Medical Payments
18. Non.owned Aircraft Coverage
19. Non.owned Watercraft
20. Personal And Advertising lnjury - Discrimination or Humiliation
21. Personal And Advertising lnjury. Contractual Liability
22. Property Damage . Elevators
23. Supplementary Payments
24. Unintentlonal Failurc To Dasclose Hazards
25. Walvor of Subrooatlon - Efanket
25. Wrap-Up Extension: OCIP CCIP, or Consolidated (Wrap-Up) lnsurance Programs
CT{A CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
ADDITIONAL INSUREDS
a. WHO lS AN INSURED is amended to inelude as an lnsured any person or organization described in paragraphs
A. through H. below whom a Named lnsured is required to add as an additional insured on this Coverage Part
under a written contract or written agreement, provided such contract or agreement:
(1 ) is currently in effect or becomes effective during the term of this Coverage Part; and
(2) was executed prior to:
(a) the bodily injury or property damage; or
(b) the offense that caused the personal and advertising injury,
Ior which such additionai insured seeks coverage.
b. However, subject always to the terms and conditions of this policy, including the limits of insurance, the lnsurer
will rlot plovide such additional insured with:
('l) a higher limit of insurance than required by such contract or agreement; or
(2) coverage broader than required by such contract or agreement, and in no ovont broador than that described
hv the annlimhle naraoranh A. lhrounh H. helnw
8^rr ^^\,616^6 dr.^ral h,, rhi- 6^d^..6m-^r chall annlrr ^^lv t^ lha awtdnt narmiacihla hv l.\^/, $,, evve,uuv 9,q"rve v, r e,,e,' qPy,,
A, Controllinglnterest
Any person or organizalion with a controlling inlerest in a Named ln$ured, but only with respect to such person or
organization's liability for bodily injury, property damage or personal and advertising injury arising out ot
1. such person or organization's financial control of a Named lnsured; or
2. premises such person or organization owns, maintains or controls while a Named lnsured leases or
occupies such premises;
provided that the coverage granted by this paragraph does not apply to structural alterations, new conslruction or
demolition operations performed by, on behalf of, or for such additional insured.
B. Co-ownor of lnsurod Prembss
A co-owner o{ a premises co-owned by a Named lnsured and covered under this insurance but only with respect
to such co-owner's liability for bodily injury, property damage or personal and advertising injury as co-owner
of such premises.
C. LossorotEqulpment
Any person or organization from whom a Named lnsured leases equipment, but only with respect to liability for
bodlly lnJury, prop€rty damage or porsonal and advortlslng lnJury caused, in whole or in part, by the Named
lnsured's maintenance, operation or use of such equipment, provided that the occurrence giving rise to such
bodily inJury, property damago or the offense giving rise to such personal and advertising injury takes place
prior to the termination of such lease.
D. Lessor of Land
Any person or organization from whom a Named lnsured leases land but only with respect to liability for bodily
injury, property damage or personal and adv€rtising injury arising out of the ownership, maintenance or use
of such land, provided that the occun€nce giving rise to such bodily injury, property damage or the offense
giving rise to such personal and advertlging injury takes place prior to the termination of such lease. The
Policy No:
Endorsement No:
cNA7470sXX (1-15)
Page 2 ol 17
40r31i0714
5
The Continenl-dl fnsurance Co.
lnsured Name: EXTENET SYSTENIS, TNC.
Copynght CNA AJI Rights Reeryed. lncludes @pyrighled materialof lnsurarce Seryices Office. lnc , with ns pemisim.
-I
--I
-r
CNA CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
coverage granted by this paragraph does not apply to structural alterations, new construction or demolition
operations peformed by, on behalf of, or for such additional insured.
E, LesgorolPremleeg
An owner or lessor of premises leased lo the Named lnsured, or such owner or lessor's real estate manager, but
only with respect to liability for bodlly lnjury, prop€rty damago or personal and advertising injury arising out of
the ownership, mainlenance or use of such part of the premises leased to the Named lnsured, and provided that
th€ occurronco giving rise to such bodlly lnjury or proporty damage, or the offense giving rise to such personal
and adverllslng lnJury, takes place prior to the termination of such lease. The coverage granted by this
paragraph does not apply to slructural alterations, new construction or demolition operations performed by, on
behalf of, or for such additional insured.
F, Mortgaooe, A$slgnoe or Rocoiver
A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee or receiver's
liability for bodlly lnJury, propsrty damage or personal and advertising injury arising out of the Named
lntured's ownership, maintenance, or use of a premises by a Named lnsured.
The coverage granted by this paragraph does not apply to structural alterations, new construction or demolition
operatlons performed by, on behalf ol or for such additlonal insured.
G. $tato or Govornmenlal Agency or Subdlvlrlon or Politicrl Subdlvlsion3 - Pormits
A state or governmental agency or subdivision or political subdivision that has issued a permit or authorization but
only wilh respect to such state or governmental agency or subdivision or political subdivision's liability for bodlly
lnjury, proporty damage or personal and advertlslng lnJury arising out of:
1. the following hazards in connection with premises a Named lnsured owns, rents, or controls and to which
this insurance applies:
a, the existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings,
canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk
vaults, street banners, or decorations and similar exposures; or
b, the construction, erection, or removal ofelevators; or
c. the ownership, maintenance or use of any elevators covered by this insurance; or
2. the permitted or authorized opera{ions performed by a Named lnsured or on a Named lnsured's behalf.
The coverage granted by this paragraph does not apply to:
a.Bodlly injury, property damage or personal and advertising injury arising out of operations performed
for the state or governmental agency or subdivision or political subdivision; or
b. Bodily injury or proporty damage included within the products-completed operations hazard.
With respect to this provision's requirement that additional insured status must be requested under a written
contract or agreement, the lnsurer will treat as a written contract any governmental permit that requires the
Named lnsured to add the governmental entity as an additional insured.
H, Tride ghowEvent Lesror
L Wth respecl to a Named lnsured's parlicipation in a trade show event as an exhibitor, presenter or displayer,
any person or organization wfiom the Named lnsured is required to include as an additional insured, but only
with respect to such person or organization's liability for bodlly injury, property damage or personal and
advertislng lnjury caused by:
cNA7470sXX (1-15)
Page 3 of 17
Policy No: 4013130?14
Endorsement No: 5
The Continental Insurance Co.
Insured Name: EXTENET SYSTENIS, INc.
Copydghl CNAAII Rlgfttts R6wed. lnclude$ @pytighted mlerlalol lnEuEnco SFryke$ Olfe, lnc., sth its psmislm,
CNA CNA PARAMOUNT
Contractors' Genoral Liability Extonsion Endorsement
a. the Named lnsured's acts or omissions; or
b. the acts or omissions of those acting on the Named lnsured's behalf,
in lhe performance ofthe Named lnsured's ongoing operations at lhe trade show event premises during the
trade show event.
2. The coverage granted by lhis paragraph does not appiy to bodily lnJury or proporly damage included wilhin
the products-completed operations hazard.
2. ADDITIOITAL II{SURED . PRIII'ARY AiID }.ION.COI{TRIBUTORY TO ADDITIOI.IAL IHSURED'S INSURANCE
Tlrc Other lttsut'ancs Currdiliurr irr tlrc COMMERCIAL OENERAL LIABILIW CONDITIONS Sectirrn ls amended to
add the following oaragraph:
lf the Named lnsured has agreed in writing in a contract or agreement that this insurance is primary and non-
contributory relative to an additional insured's own insurance, then this insurance is primary, and the lnsurer will not
seek contribution from that other insurance. For the purpose of this Provision 2., the additional insured's own
insurance means insurance on which the additional insured is a named insured. OtheMise, and notwithstanding
anything to the contrary elsewhere in this Condition, the insurance provided to such person or organization is excess
of any other insurance available to such person or organization.
3. BODILY INJURY - EXPANDED DEFINITION
Under DEFINITIONS, the definition of bodily inJury is deleted and replaced by the following:
Bodily injury means physical injury, sickness or disease sustained by a person, including death, humiliation, shock,
mental anguish or mental injury sustained by that person at any time which results as a consequence of the physical
injury, sickness or disease.
4. BROAD KNOWLEDGE OF OCCURRENCE/ NOTICE OF OCCURRENCE
Under CONDITIONS, the condition entitled Duties in The Event of Occurrence, Offense, Claim or Suit is amended
to add the following provisrons:
A. BROAD KNOWLEDGEOFOCCURRENCE
The Named lnsured must give the !nsurer or the lnsurer's authorized representative notice of an oecur!'enec,
offense or claim only when the oecurrence, offense or elaim is known to a nalural person Named lnsured, to a
partner, executive officer, manager or member of a Named lnsured, or an employee designated by any of the
above to give such notice.
B. NOTICE OF OCCURRENCE
The Named lnsured's rights under this Coverage Part will not be prejudiced if the Named lnsured fails to give
the lnsurer notice of an occurrence, offense or claim and that failure is solely due to the Named lnsured's
reasonable belief that the bodily injury or property damage is not covered under this Coverage Part. However,
the Named lnsured shall give written notice of such occurrence, offense or claim to the lnsurer as soon as the
Named lnsursd is aware that this insurance may apply lo such occurrencs, offense or claim.
5. BROAD NAMED INSURED
WHO lS AN INSURED is amended to delete its Paragraph 3. in its entirety and replace it with the following:
3. Pursuant to the limitations described in Paragraph 4. below, any organization in which a Named lnsured has
management control:
a. on theeffective dateof thisCoverage Part; or
cNA7470sXX (1-15)
Page 4 ol ',l7
Policy No:
Endorsemenl No:
40131307i4
5
The Cont.inenlal Insurance Co.
Ingured Name: EXTENET SYSTEPI.9, TNC.
Copyright Cl\tA All Riohts Rsw6d. lncfud€e @pFighted nEteriai of hsu.arce SerukEs Ofiicg. Inc.. wilh its pomisim.
CNA CNA PARAMOUNT
Gontractors' General Liability Extension Endorsement
b. by reason of a Named lnsured creating or acquiring the organization during the policy period,
qualifies as a Named lnsured, provided that there is no other similar liability insurance, whether primary,
contributory, excess, contingent or otherwise, which provides coverage to such organization, or which would have
provided coverage but for the exhaustion of its limit, and without regard to whether its coverage is broader or
narrower than that provided by this insurance.
But this BROAD NAMED INSURED provislon does not apply to:
(a) any partnership, limited liability company or joint venture; or
(b) any organization for which coverage is excluded by another endorsement attached to this Coverage Part.
For the purpose of this provision, management control means:
A. owning interests representing more than 50% of the voting, appointment or designation power for the
selection of a majority of the Board of Directors of a corporation; or
B. having the right, pursuant to a written trust agreement, to protect, control the use of, encumber or transfer or
sell property held by a kust.
4. Wlth respect to organizations which qualify as Named lnsureds by virtue of Paragraph 3. above, this insurance
does not apply to:
a, bodily injury or property damage that first occurred prior to the date of management control, or that first
occurs after management control ceases; nor
b. personal or advertising injury caused by an offense that first occurred prior to the date of management
control or that first occurs after management control ceases.
5. The insurance provided by this Coverage Part applies lo Named lnsureds when trading under their own names
or under such other trading names or doing-business-as names (dba) as any Named lnsured should choose to
employ.
6. BROADENED LIABILITY COVERAGE FOR DAMAGE TO YOUR PRODUCT AND YOUR WORK
A. Under COVERAGES, Coverage A - Bodily lnjury and Property Damage Liability, the paragraph entitled
Exclusions is amended to delete exclusions k. and L and replace them with the following:
This insurance does not apply to:
k. Damage to Your Product
Property damage to your product arising out of it, or any part of it except when caused by or resulting from:
(1) flre;
(2) smoke;
(3) collapse; or
(4) explosion.
L Damage to Your Work
Propefi damage to your work arising out of it, or any part of it and included in the products-completed
operations hazard.
This exclusion does not apply:
(l) lf the damaged work, or the work out of which the damage arises, was performed on the Namod
lnsured's behalf by a subcontractor; or
CNA74705XX (1.15) Policy No:
Page 5 of 17 Endorsement No:fhe Continental Insurance Co.
InsuTed Name: EXTENET SYSTEMS, INC.
Copytight CNA All Rlghts R6wed, lncludes @pydghled ml€rlal of lnEUErc€ SeNk65 Ofi@. lnc.. wilh lls psmislm,
4013130714
5
7
CNA CNA PARAMOUNT
Gontractors' General Liability Extonsion Endorscmcnt
(2) lf the cause of loss to the damaged work arises as a result of:
(a) fire;
(b) smoke;
(c) collapse; or
(d) explosion.
B. The following paragraph is added to LIMITS OF INSURANGE:
Subject lo 5. above, $100,000 is the most the lnsurer will pay under Coverage A for the sum of damages arising
out of ony ono occurronoo booauoo of proporty damago to your product and your work thal io cauood by fire,
smoke, collapse or explosion and is included within the produchcompleted operations hazard. This sublimit
ooes ilor appty t() ptoperty oanrage to your wonl il lne uailrageo wurK, ur ure worn uur ur wriruil rile uarilagE
arises, was performed on the Named lnsured's behalf by a subcontractor.
C, This Broadened Liebility Coverege For D.mage To Your Product And Your Work Provision do€6 not apply if
an endorsomenl of lhe same name is attached lo this policy.
COT{TRACTUAL LIABIL]W . RAILROADS
With respect to operations performed within 50 feet of railroad propedy, lhe definition of insutod contract i$ replacsd
by rho roiiowrng:
ln3urod Contrdct means:
a. A contract for a lease of premises. However, thal portion of the contrsct lor a lease of premises that indemnifies
any p€rson or organlzation for damage by flre to premisec whilo ranted to a Named lnaured or temporarlly
occupiBd by a Named lncursd with permission of the owner is nol an lnsured conlract;
b, A sidetrack agreomsnt;
c. Any easement or license agreernenl;
d. An obligation, as required by ordinance, to indemnify a municipality, except in conneclion with work tor a
municipality;
c. An ele\rator mainlenanee agreament;
t, That parl of any other contract or agreement pedarning lo the Namod insured's busrness (includrng an
indomnilication of a municipality in connection with work performed for a municipality) under which the l{amed
lnsured assumes the tort liability of anothar party to pay for bodlly lnlury or propefly damage to a third person
or organization. Tort liability means a llsbillty that would be imposed by law in the absence of any contract or
agreement.
Paragraph f. does not include that part of any contract or agreement:
(1 ) That indemnifies an architect, engineer or surveyor for injury or damage arising out of:
(a) Preparing, approving or failing lo prepare or approve maps, shop drawings, opinions, reports, surveys,
field orders, change orders or drawings and specifications; or
(b) Giving directions or rnstructions, or failing to give them, if that is the primary cause of the injury or
damage;
(2) Under which the lnsured, if an architect, engineer or surveyor, assumes liability for an injury or damage
arising out of the insured's rendering or failure to render professional services, including those listed in ('l)
above and supervisory, inspection, architectural or engineering activities.
ELECTRONIC DATA LIABILITY8.
cNA7470sXX (1-'1s)
Page 6 of .17
Policy No:
Fndorsemenl No:
{013130714
5
The ContinenLal Insurance Co.
lnsured Name: EXTENET sysrEMS, TNc.
copydght Cl{A All Riohts Rserysd. lnclude @pyriqhted material of lnsurarcs Seili:6s Offi6. lnc., with its pem-sim.
CNA CNA PARAMOUNT
Gontractors' General Liability Extension Endorsement
A. Under COVERAGES, Coverage A - Bodily lnjury and Property Damage Liability, the paragraph entitled
Exclusions is amended to delete exclusion p. Electronic Data and replace it with the following:
This insurance does not apply to:
p. Access Or Disclosure Of Confidential Or Personal lnformation And Data-related Liability
Damages arising out of:
({) any access to or disclosure of any person's or organization's confidential or personal information,
including patents, trade secrets, processing methods, customer lists, financial information, credit card
information, health information or any other type of nonpublic information; or
(2) the loss of, loss of use of, damage to, conuption of, inability to access, or inability to manipulate
electronic data that does not result from physical injury to tangible property.
However, unless Paragraph (1) above applies, this exclusion does not apply to damages because of bodily
injury.
This exclusion applies even if damages are claimed for notification costs, credit monitoring expenses,
forensic expenses, public relation expenses or any other loss, cost or expense incurred by the Named
lnsured or others arising out of that which is described in Paragraph (1 ) or (2) above.
B. The following paragraph is added to LIMITS OF INSURANCE:
Subject to 5. above, $100,000 is the most the lnsurer will pay under Coverage A for all damages arising out of
any one occurrence because of property damage that results from physical injury to tangible property and
arises out of electronic data.
G. The following definition is added to DEFINITIONS:
Electronic data means information, facts or programs stored as or on, created or used on, or transmitted to or
from computer software (including systems and applications software), hard or floppy disks, CD-ROMS, tapes,
drives, cells, data processing devices or any other media which are used with electronically controlled equipment.
D, For the purpose of the coverage provided by this ELECTRONIC DATA LIABILITY Provision, the definition of
property damage in DEFINITIONS is replaced by the following:
Property damage means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use
shall be deemed to occur at the time of the physical injury lhat caused it;
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at
the time of the occurrenc€ that caused it; or
c, Loss of, loss of use of, damage to, corruption of, inability to access, or inability to properly manlpulate
electronic data, resulting from physical injury to tangible property. All such loss of electronic data shall be
deemed to occur at the time of the occurrence lhat caused it.
For the purposes of this insurance, electronic data is not tangible property.
E. lf Electronic Data Liability is provided at a higher limit by another endorsement attached to this policy, then the
$100,000 limit provided by this ELEGTRONIC DATA LIABILITY Provision is part of, and not in addition to, that
higher limit.
ESTATES, LEGAL REPRESENTATIVES, AND SPOUSES
The estates, heirs, legal representatives and spouses of any natural person lnsured shall also be insured under this
policy; provided, however, coverage is afforded to such estates, heirs, legal representatives, and spouses only for
CNA74705XX (1.15) Policy No:
PageT of 17 Endorsemenl No:
The Continental lnsurance Co.
Insured Name: EXTENET SYSTEMS, INC.
Copydgha CitA All Rlghts R6eryed. lncludes @pyrlghted roledd ol lnsuGrce SeryiEs Otfi@, lnc. , with its pe.mislm,
4013130?14
5
9.
CNA CNA PARAMOUNT
Gontractors' Gcnoral Liability Extcnsion Endorsement
claims arising solely out of their capacity or status as such and, in the case of a spouse, where such claim seeks
damages from marital community property, jointly held property or property transferred from such natural person
lnsured to such spouse. No coverage is provided for any act, error or omission of an estate, heir, legal
representative, or spouse outside the scope of such person's capacity or status as such, provided however that the
spous€ of a natural person Named lnsured and the spouses of members or partners ofJolnt venture or partrrership
Named lnsureds are lnsureds with respect to such spouses' acts, errors or omissions in the conduct of the Named
lnsured's business.
10. EXPECTED OR INTENDED INJURY. EXCEPTION FOR REASONABLE FORCE
Under GOVERAGES, Coverage A - Bodily lnjury
Exclusions is amended to delete the exclusion entitled
TLi^ i-^..-^-^^ ^^^L, +^.I lrJ I ruut dt tuc uvEu i rvt dPPtJ tv,
Expectod or lntended lnjury
Bodlly lnjury ot properly damage expected or intended from thc alandpoint of the lnsured. This exclusion docs not
apply to bodlly lnjury or property damago resulting from the use of reasonable force to protect persons or property.
1 1, GENERAL ASOREGATE LIMITS OF INEURANCE . PER PROJECT
A. For each construction project away from premises the Named lngured owns or rents, a separate Construction
pro1ect Ljenerat Aggregate Llmtt, equat to Ine amounr oT rne uenerat Aggregare Lrmn snown rn rne uecrarations,
is the most the lnsurer will pay for the sum of:
1. All damages under Coverage A, except damages because of bodily injury or property damage included in
the products-completed opelatl0ns hazard; and
2. All medical expenses under Coverage C,
that arise from occurrences or accidents which can be attributed solely to ongoing operations at that construction
project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations, nor the
Conskuction Project General Aggregate Limit of any other construction project.
and Property Damage Liability, the paragraph entitled
Expected or lntended lnjury and replace it with the following:
Damages under Goverage B, regardless of lhe number of locations or construction projects involved;
Damages under Coverage A, caused by oceurrenees which cannot be attributed solely to ongoing
operations at a single construction project, except damages because of bodily injury or property damage
included in the products-completed operations hazard; and
Medical expenses under Coverage C caused by accidents which cannot be athibuted solely to ongoing
operations at a single construction project,
will reduce the General Aggregate Limit shown in the Declarations.
C. The limits shown in the Declarations for Each Occurrence, for Damage To Premises Rented To You and for
Medical Expense continue to apply, but will be subject to either the Construction Project General Aggregate Limit
or the General Aggregate Limit shown in the Declarations, depending on whether the occurrence can be
attributed solely to ongoing operations at a particular construction project.
D. When coverage for liability arising out of the products-completed operations hazard is provided, any payments
for damages because of bodlly lnjury or property damage included in the products-completed operations
hazard will reduce the Products-Completed Operations Aggregate Limit shown in the Declaralions, regardless of
the number of projects involved.
B. AII
1.
2.
3.
cNA7470sXX (1 -1 s)
Page I of 17
Policy No:
Endorsemenl No:
4013130714
5
?he ConEinental Insurance Co,
lnsured Name: EXTENET sYgrEMS, 1l'lc,
Copyrltht CNA All Righte Rsetued. lnclud€s Fpy.iqhlod nEterial ot lmuraRe Ssrui€s Oflics. lnc-, wilh its peffijsim.
CNA CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
E. lf a single construction project away from premises owned by or rented to the lnsured has been abandoned and
then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or
timetables, the project will still be deemed to be the same construction project.
F. The provisions of LIMITS OF INSURANCE not otherwise modified by this endorsement shall continue to apply as
stipulated.
12. IN REM ACTIONS
A quasi in rem action against any vessel owned or operated by or for the Named lnsured, or chartered by or for lhe
Named lnsured, will be treated in the same manner as though the action were in personam against the Named
lnsured.
{3. INCIDENTAL HEALTH CARE MALPRACTICE COVERAGE
Solely with respect to bodily injury that arises out of a health care incident:
A, Under COVERAGES, Coverage A - Bodily lnjury and Property Damage Liability, the paragraph entitled
lnsuring Agreemsnt is amended to replace Paragraphs 1 .b.('l ) and {.b,(2) with the following:
b. This insurance applies to bodily injury provided that the professional health care services are incidental to
the Named lnsured's primary business purpose, and only if;
(1) such bodily injury is caused by an occurrence that takes place in the coverage territory.
(2) the bodily injury first occurs during the policy period. All bodily injury arising from an occurrence will
be deemed to have occurred at the time of the first act, error, or omission that is part of ihe occurrence;
and
B. Under COVERAGES, Coverage A - Bodily lnjury and Property Damage Liability, the paragraph entitled
Exclusions is amended to:
i. add the following to the Employers Liability exclusion:
This exclusion applies only if the bodily injury arising from a health care incident is covered by other
liability insurance available to the lnsured (or which would have been available but for exhaustion of its
limits).
ii. delete the exclusion entitled Contractual Liability and replace it with the following:
This insurance does not apply to:
Cont.actual Liability
lhe lnsured's actual or alleged liability under any oral or written contract or agreement, including but not
limited to express warranties or guarantees.
iii. add the following additional exclusions:
This insurance does not apply to:
Discrimination
any actual or alleged discrimination, humiliation or harassment, including but not limited to claims based on
an individual's race, creed, color, age, gender, national origin, religion, disability, marital status or sexual
orientation.
Dlshonesty or Crime
Any actual or alleged dishonest, criminal or malicious act, error or omission.
Medicaro/Medicaid Fraud
CNA74705XX (1.15)
Page I ot 17
Policy No: 4013130714
Endorsement No: 5
The Continental Insurance Co.
lnsured Name: EXTENET SYSIEMS, rNc.
Copyrbht Cl{A All Rlghts Rs€wed. lnclud* @pyrlghled mslerlal ot lffiuErc€ SeNlc6 Olfr@. lnc. , u1h lts pqtr{slm,
CT{A CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
any actual or alleged violation of law with respect to Medicare, Medicaid, Tricare or any similar federal, state
or local governmental program.
Services Excluded by Endorsement
Any health care incident for which coverage is excluded by endorsement.
C. DEFINITIONS is amended to:
i. add the following definitions:
Health care incident means an act, error or omission by the Named lnsured's employees or volunteer
wnrkers in the renderin0 of'
d. plgic5llulrcr llcdlllr LdIc 5clYru95 uil 9clrdlr ur Irc rrdiilcu lilrurcu ul
b. Good Samaritan services rendered in an emergency and for which no payment is demanded or received.
Professional health care scrvicos means any haalth carc services or the related furnishing of food,
beverages, medical supplies or appliances by the following providers in their capacity as such but solely to
the extent they are duly licensed as required:
a. Physician;
b. Nurse;
c, Nurse practitioner;
d, Emergency medical technician;
e, Paramedic;
f. Dentist;
g. Physical therapist;
h. Psychologist;
i Sneech theranist'
j, Other allied health professional; or
Professional health care services does not include any services rendered in connection with human clinical
trials or product testing.
ii, delete the definition of occurrence and replace it with the following:
Occurrence means a health care incident. All acts, enors or omissions that are logically connected by any
common fact, circumstance, situation, transaction, event, advice or decision will be considered to conslitute a
srngle occurrence;
iii. amend the definition of lnsured to:
a. add the following:
the Named lnsured's employees are lnsureds with respect to:
(1) bodily injury to a co-employee while in the course of the co-employee's employment by the
Named lnsured or while performing duties related to the conduct of the Named lnsured's
business; and
cNA74705XX (1-15)
Page 10 of 17
No:
No:
4013130714
5
Policy
Endorsemenl
The Conbinental Insurance Co,
Insured Name: EXTENET SYSTEMS, INC,
Copy.iJht CllA All Rights Rswed. lndudes copyrighted material of lffiu.arce S€ryk86 Offi€. 1.c., with it5 pomisim.
CT{A CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
(2) bodily injury to a volunteer worker while performing duties related to the conduct of the
Named lnsured's business;
when such bodily injury arises out of a health care incident.
the Named lnsured's volunteer workers are lnsureds with respect to;
(f ) bodily injury to a co-volunteer worker while performing duties related to the conduct of the
Named lnsured's business; and
(2) bodily i.njury to an employee while in the course of the employee's employment by the Named
lnsured or while performing duties related to lhe conduct of the Named lnsured's birsiness;
when such bodily injury arises out of a health care incident.
b. delete Subparagraphs (a), (b), (c) and (d) of Paragraph 2.a.(t) of WHO lS AN INSURED.
D. The Other lnsurance condition is amended to delete Paragraph b.(l) in its entirety and replace it with the
following:
Other lnsurance
b. Excess lnsurance
(l ) To the extent this insurance applies, it is excess over any other insurance, self insurance or risk transfer
instrument, whether primary, excess, contingent or on any other basis, except for insurance purchased
specifically by the Named lnsured to be excess of this coverage.
14, JOINT VENTURES / PARTNERSHIP / LIMITED LIABILITY COMPANIES
WHO lS AN INSURED is amended to delete its last paragraph and replace it with the following:
No person or organization is an lnsured with respect to the conduct of any current or past partnership, joint venture or
limited liability company that is not shown as a Named lnsured in the Declarations, excepi thai if the lriamed lnsured
lvqq € joint venturer, partner, or member of a limited liability company and such joint venture, partnership or limited
liability company terminated prior to or during the policy period, such Named lnsured is an lniured with respect to
its interest in such joint venture, partnership or limited liability company but only to the extent that:
a. any offonse giving rise to personal and advertising injury occurred prior to such termination date, and the
porsonal and advertising inJury arising out of such offense first occurred after such termination date;
b. tho bodily injury or property damage flrst occurred after such termination date; and
c. there is no other valid and collectible insurance purchased specifically to insure the partnership, joint venture or
limited liability company; and
lf the joint venture, partnership or limited liability company is or was insured under a consolldated (wrap-up)
insurance program, then such insurance will always be considered valid and collectible for the purpose of paragraph
c. above. But ihis provision will not serve 1o exclude bodily injury, property damage or personal and advertising
iniury that would otherwise be covered under the Contractors General Liability Extension Endorsement provision
entitled WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS.
Please see that provision for the definition of consolidated (wrap-up) insurance program.
15. LEGAL LIABILITY . DAMAGE TO PREMISES / ALIENATED PREMISES / PROPERTY IN THE NAMED
INSURED'S CARE, CUSTODY OR CONTROL
A. Under COVERAGES, Coverage A - Bodily lnjury and Property Damage Liability, the paragraph entitled
Exclusions is amended to delete exclusion j. Damage to Property in its entirety and replace it with the following:
This insurance does not apply to:
CNA74705XX (1-15)
Page 11 of17
fhe Continental Insurance Co.
lnsured Name: EXTENET sYsrsMs, rNc.
Copfight CNA All Rlghts Rswed, lnclud€e @pytlghted moledal ol lnsuEn€ Sewkos Otlle. lnc., with ib psmi$ls,
Policy
Endorsement
No:4013130714
No: 5
CNA CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
Damage to Property
Property damage to:
(t) Property the Named lnsured owns, rents, or occupies, including any costs or expenses incurred by you,
or any other person, organization or entity, for repair, replacement, enhancement, restoration or
maintcnancc of suoh proporty for any rscson, including prev€ntion of injury to a person or damage to
another's property;
(2) Premises the Named lnsured sells, gives away or abandons, if the property damage arises out of any
pari of ihose premises;
(3) Properiy loaned to thc Namcd lnsured;
i4) Personai properiy in ihe care, cusiociy ot uortitol ui liie lriSrii€ti;
(5) That particular part of real property on which the Named lnsured or any contractors or subconlractors
working directly or indirectly on the Named lnsured's behalf are performing operations, if thc property
damage arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because your work was
inco!'rectly peforrned on it.
Peranrenhc l'll. J3l and lll nf this exchrsinn do nnt annlv tn nroneriv damaoe {other than damaoe bv fire) to
premises rented to the Named lnsured or lemporarily occupied by the Named lnsured with the permission of
the owner, nor lo the contents of premises rented to the Named lnsured for a period of 7 or fewer
consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described
in LIMITS OF INSURANCE.
Paragraph (2) of this exclusion does not apply if the premises are your work.
Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack
agreement.
Paragraph (6) of this exclusion does not apply to property damage included in the products-completed
operations hazard.
Paragraphs (3) and ( ) of this exclusion do not apply to property damage to:
i. tools, or equipment the Named lnsured borrows from others, nor
ii. other personal property of others in the Named lnsured's care, custody or control while being used in the
Named lnsured's operations away from any Named lnsured's premises.
However, the coverage granted by this exception to Paragraphs (3) and (a) does not apply to:
a, property at a job site awaiting or during such property's installation, fabrication, or erection;
b. property that is mobile squipmsnt leased by an lnsured;
c. property that is an auto, aircraft or watercraft;
d. property in transit; or
e. any portion of property damage for which the lnsured has available other valid and collectible
insurance, or would have such insurance but for exhaustion of its limits, or but for application of one of its
exclusions.
A separate limit of insurance and deductible apply to such property of others. See LIMITS OF INSURANCE
as amended below.
CNA74705XX (1-15) Policy Nor 40131"30?14
Page 12oI 17 Endorsement No: 5
The continenlal fnsurance Co.
lnsuredName: EXTENET SYsrE&ls, TNc.
Copyright cNA All Righls Reswed. lncludes €py{ightad maleri3lof lnsumRe seNic€s Ofij€. inc., with hs p€misi@.
CNA CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
lnjury and Property Damage Liability, the paragraph entitled
raph and replace it with the following:
Exclusions c. through n, do not apply to damage by fire to premises while rented to a Named lnsured or
temporarily occupied by a Named lnsured with permission of the owner, nor to damage to the contents of
premises rented to a Named lnsured for a period of 7 or fewer consecutive days.
A separate limit of insurance applies to this coverage as described in LIMITS OF INSURANCE.
G. The following paragraph is added to LIMITS OF INSURANCE:
Subject to 5. above, $25,000 is the most the lnsurer will pay under Goverage A for damages arising out of any
one occurrence because of the sum of all property damage to borrowed tools or equipmenl, and to other
personal property of others in the Named lnsured's care, cuslody or control, while being used in the Named
lnsured's operations away from any Named lnsured's premises. The lnsurer's obligation to pay such property
damage does not apply until the amount of such property damage exceeds $1,000. The lnsurer has the right but
not the duty to pay any portion of this $1,000 in order to effect settlement. lf the lnsurer exercises that right, the
Named lnsured will promptly reimburse the lnsurer for any such amount.
D. Paragraph 6., Damage To Premises Rented To You Limit, of LIMITS OF INSURANCE is deleted and replaced by
the following:
6. Subject to Paragraph 5. above, (the Each Occurrence Limit), the Damage To Premises Rented To You Limit
is the most the lnsurer will pay under Coverage A for damages because of property damage to any one
premises while rented to the Named lnsured or temporarily occupied by the Named lnsured with the
permission of the owner, including contents of such premises rented to the Named lnsured for a period of 7
or fewer consecutive days. The Damage To Premises Rented To You Limit is the greater of:
a. $500,000; or
b. The Damage To Premises Rented To You Limit shown in the Declarations.
E. Paragraph 4.b,(l Xaxii) of the Other lnsurance Condition is deleted and replaced by the following:
(ii) That is property insurance for premises rented to the Named lnsured, for premises temporarily occupied by
the Named lnsured with the permission of the owner; or for personal property of others in the Named
lnsured'g care, custody or control;
16. LIQUOR LIABILITY
Under COVERAGES, Coverage A - Bodily lnjury and Property Damage Liability, the paragraph entitled
Excluslons is amended to delete the exclusion entitled Liquor Liability.
This LIQUOR LIABILITY provision does not apply to any person or organization who otherwise qualifies as an
additional insured on this Coverage Part.
,I7, MEDICAL PAYMENTS
A. LIMITS OF INSURANCE is amended to delete Paragraph 7. (the Medical Expense Limit) and replace it with the
following:
7. Subject to Paragraph 5, above (the Each Occurrence Limit), the Medical Expense Limit is the most the
lnsurer will pay under Coverage C - Medical Payments for all medical expenses because of bodily injury
sustained by any one person. The Medical Expense Limit is the greater ot
(1) $15,000 unless a different amount is shown here: $N,NNN,NNN,NNN; or
(2) the amount shown in the Declaralions for Medical Expense Limit.
cNA74705XX (1-15)
Page 13of17
Policy No: 4013130?14
Endorsemenl No: 5
The Continental Insurance Co.
lnsured Name: EXTENET SYSTEMS, lNC.
Copyright CNA All Rlght6 R6ew€d. lnsludes @pyrlghted mtedal ot lnsuEm€ Serylces Offi@. lnc., Mth lt! psmislm.
B. Under COVERAGES, Coverage
Exclusions is amended to delete
A - Bodily
its last parag
CNA CNA PARAMOUNT
Gontractors' General Liability Extension Endorsement
B. Under COVERAGES, the lnsuring Agreement of Coverage C - Medical Payments is amended to replace
Paragraph 1.a.(3)(b) wilh the following:
(b) The expenses are incurred and reported to the lnsurer within three years of the date of the accident; and
18. NON.OWNED AIRCRAFT
Under GOVERAGES, Coverage A - Bodlly lnjury and Property Damage Llability, the paragraph entitled
Exclusions is amended as follows:
The exclusion eniitled Aireraft, Auto or Watercraft is antended to add the following:
This cxclusion does not apply to an airoraft not own€d by any Named lnsurgd, provicied that:
1. the pilot in command nolcJs a ourrently effective cenrtrcale rssued by the dury consritutecj autnority oi tne iiniteci
States of America or Canada, designating that person as a commercial or airline transport pilot;
2. the aircraft is rented with a trained, paid crew to the Nam€d lnsurod; and
3. the aircraft is not being used to carry persons or property for a charge.
,!
-O. NON -OWN ED W.,A.TERCF-A.FT
I r-r^- ^AltEoAaEG ^^.,^,--^ A D^lih, lhi,,-, -hd Dr^^^4rr n-m-^- I i.hil;h, +ha naraaranh antirladl-lIr---,_..,.'....J,...-f-,'-'J..'r,,
Exclusions is amended to delete subparagraph (2) of the exclusion entilled Aircraft, Auto or Watercraft, and
replace it with the following.
This cxolusion docc not apply to:
(2) a watercraft that ls not owned by any Named lnsured, provided the watercraft is:
(a) less than 75 feet long; and
(b) not being used to carry persons or property for a charge.
20. PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HUMILIATION
A, Under DEFINITIONS, the definition of personal and advertising injury is amended to add the following tort:
Discrimination or humiliation thai results in injury io ihe feeiings or reputaiion of a naiural person.
B. Under COVERAGES, Coverage B - Personal and Advertising lnjury Liability, the paragraph entitled
Exclusions is amended to:
1. delete the Exclusion entitled Knowing Violation Of Rights Of Another and replace it with the following:
This insurance does not apply to:
Knowing Violation of Rights of Another
Personal and advertising injury caused by or at the direction of the lnsured with the knowledge that the act
would violate the rights of another and would inflict personal and advertising injury. This exclusion shall not
apply to discrimination or humiliation thal results in injury to the feelings or reputation of a natural person, but
only if such discrimination or humiliation is not done intentionally by or at the direclion of:
(a) the Named lnsured; or
(b) any executive officer, director, stockholder, partner, member or manager (if the Named lnsured is a
limited liability company) of the Named lnsured.
2. add the following exclusions:
cNA7470sXX (1-15)
Page'14 of 17
40131307r"4
5
The ContinenLal lnsurance Co,
InsuredName:EXTENET SYs?EMs, TNC,
Copynght CllA All Rights Rsered. Inelu&s spyrightod material of lffiuErce Serui€s Ofi@. inc-, vrth ils pamisi6.
Endorsement
No:
No:
Policy
CNA CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
This insurance does not apply to:
Employment Related Discrimination
Discrimination or humiliation directly or indirectly related to the employment, prospective employment, past
employmenl or termination of employment of any person by any lnsured.
Premlses Related Dlscrlmination
discrimination or humiliation arising out of the sale, rental, lease or sub-lease or prospective sale, renlal,
lease or subJease of any room, dwelling or premises by or at the direction of any lnsured.
Notwithstanding the above, there is no coverage for fines or penalties levied or imposed by a governmental entity
because of discrimination.
The coverage provided by this PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HUMILIATION
Provision does not apply to any person or organization whose status as an lnsured derives solely from
Provision 1. ADDITIONAL INSURED of lhis endorsement; or
attachment of an additional insured endorsement to this Coverage Part.
This PERSONAL AND ADVERTISING INJURY -DISCRIMINATION OR HUMILIATTON Provision does not apply to
any person or organization who olherwise qualifies as an additional insured on this Coverage Part.
21, PERSONAL AND ADVERTISING INJURY - CONTRACTUAL LIABILITY
A. Under COVERAGES, Goverage B -Personal and Advertising lnjury Liability, the paragraph entitled
Exclusions is amended to delete the exclusion entitled Contractual Liability.
B. Solely for the purpose of the coverage provided by this PERSONAL AND ADVERTISING INJURY .
CONTRACTUAL LIABILITY provision, the following changes are made to the section entitled
SUPPLEMENTARY PAYMENTS - COVERAGES A AND B:
1. Paragraph 2.d. is replaced by the following:
d. The allegations in the suit and the information the lnsurer knows about the offense alleged in such suit
are such that no conflict appears to exist between the interests of the lnsured and the interests of the
indemnitee:
2. The first unnumbered paragraph beneath Paragraph 2.f,(2Xb) is deleted and replaced by the following:
So long as the above conditions are met, attorneys fees incurred by the lnsurer in the defense of that
indemnitee, necessary litigation expenses incurred by the lnsurer, and necessary litigation expenses incurred
by th€ lndemnitee at the lnsurer's request will be paid as defense costs. Such payments will not be deemed
to be damages for personal and advertising injury and will not reduce the limits of insurance.
C. This PERSONAL AND ADVERTISING INJURY - CONTRACTUAL LIABILITY Provision does not apply if
Coverage B -Personal and Advertising lnjury Liability is excluded by another endorsement attached i6 ihis
Coverage Part.
This PERSONAL AND ADVERTISING INJURY - CONTRACTUAL LIABILITY Provision does not apply to any
person or organization who otherwise qualifies as an additional insured on this Coverage Part.
22. PROPERTY DAMAGE. ELEVATORS
A. Under COVERAGES, Coverage A - Bodily lnjury and Property Damage Liability, the paragraph entitled
Exclusions is amended such lhat the Damage to Your Product Exclusion and subparagraphs (3), (a) and (6) of
the Damage to Property Exclusion do not apply to property damage that results from the use of elevators.
CNA74705XX (1-15) Policy No: 4013130?14
Page 15 of '17 Endorsement No: 5
The Continental Insurance Co.
lnsured Name: EXTENEI SYSTEMS, INc.
Copyright CNA All Rlgbts Rffewed, lncludes @pyrighted mterlal ot lnsuErce Seryi{€s Ollt@, lnc. , s1h ils psmissln.
CT{A CNA PARAMOUNT
Contractors' General Liability Extension Endorsement
B. Solely for the purpose of the coverage provided by this PROPERTY DAMAGE - ELEVATORS Provision, the
Other lnsurance conditions is amended to add the following paragraph:
This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other
basls that ls Ploperty lnsurance coverlng property of others damaged from lhe use of elevult-rrs.
23. SUPPLEMENTARY PAYMENTS
The section entitled SUPPLEMENTARY PAYMENTS - COVERAGES A AND B is amended as follows:
A. Paragraph 1.b. is amended to delete the $250 limit shown for the cost of bail bonds and replace it with a $5,000.
llt I ltt, dt lu
E, i-ai'agi'aph i.d. i; amendcd io dcictc thc iimit of $250 shch'n fcr dailir lcss of ccrningt 3nd replsce it rf ith 3
$1,000. limit.
24. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS
lf the Named lnsured unintentionally fails to disclose all existing hazards at the inception date of the Named
lnsured's Covorago Part, the lnsurer will not deny coverage under this Coverage Part because of such failure.
25. WAIVER OF SUSROGATION. BLANKET
Under CONDITIONS, the condition entitled Translsr Ol Rights Ol Rocovsry Against Uthors I o Us ls am€nd€d to
add the following:
The lnsurer waives any tighl of recovery the lnsurer may have against any pelson or organization because of
payments lhe lnsurer makes for inJury or d€mage arising out oi:
1. ths Namod lnsurod's ongoing operations; or
2. your work included in the products-complotod oporatlons hazard.
However, this waiver applies only when the Named lnsured has agreed in writing to waive such nghis of recovery in
a written contracl or written agr€ement, and only lf such mntrac! or agre€menl:
1, is in effect or becnmes Bffective during lhe term of this Coverage Parl; and
?. was executed prior io lhe badlly lnlury, propsrty dsmage or perBonal and advotiising lnlury giving rise tc the
clalm.
26. WRAP-UP EXTENSION: OCIP, cclP, oR CONSOLIDATED (WRAP-UP) IiISURANCE PROGRAMS
Itlote: The following provision does not apply to any public construction project in the state of Oklahoma, nor lo any
conslruclion proJect in the state of Alaska, that is not permitted to be insured under a consolidated (wrap-up)
insurance program by applicable state statute or regulation.
lf the endorsement EXGLUSION - CONSTRUCTION WRAP-UP is attached to this policy, or another exclusionary
endorsement pertaining to Owner Controlled lnsurance Progi'ams (O.C.l,P.) or Contractor Controlled lnsurance
Programs (C.C.l.P.) is attached, then the following changes apply:
A. The following wording is added to the above-referenced endorsement:
With respect to a consolidated (wrap-up) insurance program project in which the Named lnsured is or was
involved, this exclusion does not apply to those sums the Named lnsured become legally obligated to pay as
damages because of:
1, Bodily injury, property damage, or personal or advertising injury that occurs during the Named lnsured's
ongoing operations at the project, or during such operations of anyone acting on the Named lnsured's
behalf; nor
CNA74705XX (1-15) Policy No: 4011130714
Page 16 of 17 Endorsement No; 5
The ConLinental fn$uranae Cc,
lnsured Name: EXTET'IET sYsrENls, TNC,
Copy.ight CtiA All Rights Rseryed. Includes coplrighied material of lnsurarce Seruiffis Off€. lnc . with ats Frmtsift.
CNA CNA PARAMOUNT
Gontractors' General Liability Extension Endorsement
2. Bodily injury or property damage included within the products-completed operations hazard that arises
out of those portions of the project that are not residential structures_
B. Condition 4. Other lnsurance is amended to add the following subparagraph a.b.(l)(c):
This insurance ls excess over:
(c) Any of the other insurance whether primary, excess, contingent or any other basis lhat is insurance available
to the Named lnsured as a result of the Named lnsured being a participant in a consolidated (wrap-up)
insurance program, but only as respects the Named lnsured's involvement in that consolidated (wrap-up)
insurance program.
C, DEFINITIONS is amended to add the following definitions:
Consolidated (wrap-up) insurance program means a construction, erection or demolition proiect for which the
prime contractor/project manager or owner of the construction project has secured general liability insurance
covering some or all of lhe contractors or subcontractors involved in the project, such as an Owner Controlled
lnsurance Program (O.C.l.P.) or Contractor Controlled lnsurance Program (C.C.l.p.).
Residential structure means any slructure where 3070 or more of the square foot area is used or is intended to
be used for human residency, including but not limited to:
1. single or multifamily housing, apartments, condominiums, townhouses, co-operatives or planned unit
developments; and
2. the common areas and structures appurtenant to the structures in paragraph l. (including pools, hot tubs,
detached garages, guest houses or any similar structures).
However, when there is no individual ownership of units, residential structure does not include military housing,
college/university housing or dormitories, long term care facilities, hotels or motels. Residential struiture alsb
does not include hospitals or prisons.
This WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP.UP) INSURANCE PROGRAMS Provision
does not apply to any person or organization who otherwise qualifies as an additional insured on this Coverage Part.
All other terms and conditions of the Policy remain unchanged.
This endorsement, which forms a part of and is for attachment to the Policy issued by the designated lnsurers, takes effect
on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and
with said
-
CNA74705XX (1-15)
Page 17 of 17
Policy Nol
Endorsement No:fhe Continental Insurance Co.
lnsured Name: EXTENE! SYSTEMS, rNC,
Copyrighl CNA All Rlghts R6€ryed, lnclud€s @pytlghted rutedal ol lroumre Seryk€s Otfr@, lnc., wilh ih psnhilm,
40r3130714
5
s
&8
CNA CNA PARAMOUNT
Prinrary alrrl Norrcorttributory - Other Insurance
Condition Endorsement
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIASILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
It is understood and agreed that the condition entitled Other lnsurance is amended to add the following:
Primary And Noncontributory lnsurance
Notwithstanding anything to the conirary, this insurance is primary to and will not seek contribution from any other
insurance available to an additional insured under this policy provided that:
a. the additional insured is a named insured under such other insurance: and
b, the Named lnsured has agreed in writing in a conlract or agreement that this insurance would be primary and
would not seek contribution from any other insurance available to the additional insured.
nii oiher ierms anci conciiiions of ihe Poiicy remain unchangeci
This endorsement, which forms a part of and is for attachment to the Policy issued by the designated lnsurers, takes effect
on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and
concu with said
CNA74987XX (1-15) Policy No: 4013130714
Page 1 of 1 Endorsemenl No: 12
fhe Cont.inental Insurance Co.
lnsured Namel EXTENET SYs?gMS, rNc.
Copyrighl Cl^iA All Rlghts R6srv€d, lncludF @pyright€d ruterial ot lnsurarc€ S€ffices Olfi*, lnc , with its F€mislm.
General Liability Policy - 30 Days NOC
CNA CNA PARAMOUNT
Policy Holder Notice - Gountrywide
It is understood and agreed lhat:
lf the Named lnsured has agreed under written contract to provide notice of cancellation to a party to whom lhe Agent of
Record has issued a Certilicate of lnsurance, and if the lnsurer cancels a policy term described on thal Certificate of
lnsurance for any reason other than nonpayment of premium, then notice of cancellatlon wlll be provided io such
Certllicale holders at least 30 days in advance of the date cancellation is efieclive.
lf notice is mailed, then proof of mailing to lhe last known mailing address of the Ceriificate holder on file with the Agent of
Record will be sufiicient to prove notice.
Any failure by lhe lnsurer to noti$ such persons or organizations will not extend or invalidate such cancellation, or impose
any liability or obligation upon the lnsurer or the Agent of R€cord.
All other terms and conditions of the Policy remain unchanged.
This endorsement, which forms a part of and is for attachment to the Policy issued by the designated lnsurers, takes effect
on the effective date of said Policy at the hour stated in said Policy, unless another effective dale is shown below, and
with said
CNA75014XX (1-15) Policy No: 4013130?14
Page 1 of 'l Endorsement No: 1
The Continental lnsurance Co.
lnsured Name: EXTENET sYsTgMS, INc.
Copyright CNA All Rlghts R6eryed. lncludes @pyrighled mat€rk, ot lniuEnce SeNlc€s ('lfl@, lnc , wilh its pemisslm.
POLICY NUMBER: 401 31 30681 COMMERCIAL AUTO
cA 20 48 10 13
THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY.
DESIGNATED INSURED FOR
COVERED AUTOS LIABILITY COVERAGE
This endorsement modilies insurance provided under the following:
AUTO DEALERS COVERAGE FORM
BUSINESS AUTO COVERAGE FORM
I.,IOTOR CARRIER COVERA,GE FORiN
With respect lo coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by
thio ondoroomont.
This endorsement identifies person(s) or organization(s) who are "insureds" for Covered Autos Liability Coverage under
the Who ls An lnsured provision of the Coverage Form. This endorsement does not alter coverage provided in the
n^1'^r^^^ E^rMvvvwrqvw r vil,,.
This endorsement chanqes the policv effective on the inception date of the policv unless another dale is indicated
below.
Named lnsured: EXTENET SYSTEMS, TNc
SCHEDULE
Each person or organization an in the Business Auto and Motor
'insured" for Covered Autos Liability Coverage, but only
to the extent that person or organization qualifies as an
"insured" under the Who ls An lnsured provision
contained in Paragraph A.1, of Section ll - Covered
Carrier Coverage Forms and Paragraph D.2. of Section I
- Covered Autos Coverages of the Auto Dealers
Coverage Form.
Name Of Person(s) Or Organization(s):
SEE ENDORSMENT
lnformation reouired to comolete lhis Schedule. if not shown above, will be shown in the Declarations.
cA 20 48 l0 13 Copyright, lnsurance Services Offlce, lnc., 2011 Page I of I
PO&ICY NTN1IBER
P 4013130581
INSURED NAS4E A}ID ADDRESS
EXTENET SYSTEMS, ]NC,
3O3O WARRENVIILE RD STOP 340
LrsLE, TL 60532-3633
POLICY CHAT.IGES
CA2O48 DESIGTiTATED INSI'RED BI,AIIKET
This Change Endorsarnent changes the poticy. ptease read it caf,efu1ly.This Change Endorgenent is a part of your policy and takee ef,fect on theeffective date of your Policy, unless another effective date is shown.
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFUTTY
DESIGNATED INSURED BLANKET
ANY PERSON OR ORGANIZATION THAT THE NAMED INSURED IS OBLIGATED TO
PROVIDE INSURANCE WHERE REQUIRED BY A WRITTEN CONTRACT OR AGREEMENTrS AN TNSURED, BUT ONLY WTTH RESPECT TO LEGAL RESPONSIBII,ITY FOR
ACTS OR OMISSIONS OF A PERSON OR ORGANIZATION FOR WHOM LIABILITY
COVERAGE IS AFFORDED UNDER THIS POLICY.
-
)'o;,"P'-Chalrh.n ot lhe
G-56015-B (ED.1.L / 9L',)
I
ExteNet Systems, lnc - Commercial Auto Policy Number 4013130681
Primary covcrogc wording
4. Loss Payment- Physical Damage Coverages
At our option, we may:
a. Pay for, repair or replace damaged or stolen
property;
b. Return the stolen property, at our expense.
We will pay for any damage that results to the
"outo" from thc thcft; or
c. Take all or any part of the damaged or stolen
property at an agreed or appraised value.
if we pay for ihe "loss", oLii payirteiri will iiiciude
ihe applicabie sales iax for ihe damaged or stolen
property.
5. Transier Of nigirts Oi Recovery Againsi
Others To Us
lf any person or organization to or for whom we
mekc peymcnt under this Coverage Form he-c
rights to recover damages from another, those
rights are lransferred to us. That person or
organization must do everything necossary lo
secure our tights and must do rrolhing alter(^^^;n^^+tr ^, rr^^^n.^ ;l9^^iY rts^^r
P laanaral (landirinna
1. Bankruptcy
Barrkruptcy ur lnsolvency oI the "lnsuretl" or the
"insured's" estate will not relieve ils of any
obligations under this Coverage Form.
2. Concealment, Misrepresentation Or Fraud
This Coverage Form is void in any case of fraud
by you at any time as it relates to this Coverage
Form. lt is also void if you or any other "insured",
at any lime, intentionally conceals or
misrepresents a material fact concerning:
a. This Coverage Form;
b, The covered "auto";
c. Your interest in the covered "auto"; or
d. A claim under this Coverage Form.
3. Liberalization
lf we revise this Coverage Form to provide more
coverage without additlonal premium charge,
youi policy vuill automatically piovide the
additional coverage as of the day the revision is
effective in your state.
4. No Benefit To Bailee - Physical Damage
Coverages
We will not recognize any assignment or grant
any coverage for the benefit of any person or
organization holding, storing or transporting
property for a fee regardless of any other
provision of this Coverage Form.
5, Other lnsurance
a. For any covered ''auto" you own, this
Coverage Form provides primary insurance.
For any covered ''auto" you don't own, the
insurance provided by this Coverage Form is
excess over any olher collectible insurance.
However, while a covered "auto" which is a
"trailer" is uurrrreuted to atrotheI vehicle, tlre
Covered Autos Liability Coverage lhis
Coverage Forrn provides fot ihe "irailet'' is:
,4 \ E-^^^^ '.,hil^ i+ i- ^^^-^^l^i tn a mnlnrt ry L^esro
vehicle you do not own; or
(2) Primary while it is connected to a covered
du(u yvu vlvrl.
b, For Hired Auto Physical Damage Coverage,
any covered "auto" you lease, hire, rent or
bonow is dcemed to be a covered "auto" yott
own. However, any "auto' that is leased,
hired, rented or borrowed with a driver is not a
covered "arilo.'
c. Regardless of the provisions of Paragraph. a.
duvvE, allli vuvEldgc I vlrli) 9uvslgv nutur
Liability Coverage is primary for any liabilitv
assumed under an "insured conlract."
d. When this Coverage Form and any other
Coverage Form or policy covers on the same
basis, either excess or primary, we will pay
only our share. Our share is the proportion
that the Limit of lnsurance of our Coverage
Form bears to the total of the limits of all the
Coverage Forms and policies covering on the
same basis.
6. Premium Audit
a. The estimated premium for this Coverage
Form is based on the exposures you told us
you would have when this policy began- We
will compute the final premium due when we
determine your actual exposures. The
estimated total premium will be credited
against the final premium due and the first
Named lnsured will be billed for the balance, if
any. The due date for lhe final premium or
retrospective premium is the date shown as
the due date on the bill. lf the estimated totai
premium exceeds the final premium due, the
first Named lnsured will get a refund.
b. lf this policy is issued for more than one year,
the premium for this Coverage Form will be
computed annually based on our rates or
premiums in effect at the beginning of each
year of the policy.
cA 00 0t t0 13 Copyright, lnsurance Services Office, lnc., 20'11 Page 9 of 12
POLTCY NUMBER. 401 31 30681 COMMERCIAL AUTO
cA 04 44 10 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
WAIVER OF TRANSFER OF RIGHTS OF RECOVERY
AGATNST OTHERS TO US (WA|VER OF SUBROGATTON)
This endorsement modifies insurance provided under the following:
AUTO DEALERS COVEMGE FORM
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVEMGE FORM
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by
the endorsement.
This endorsement changes the policy effective on the inception date of the policy unless another date is indicated
below.
Namedlnsured: EXTENET SysTEMs, rNc.
SCHEDULE
Nam€(s) Of Porson(s) Or Organization(s):
ANY PERSON OR ORGANIZAT]ON FOR WHOM
OR WHICH YOU ARE REQUIRED BY I/{RITTEN
CONTRACT OR AGREEMENT TO OBTAIN THIS
WAIVER FROM US, YOU MUST AGREE TO THAT
REQUIREMENT PRIOR TO ],OSS.
lnformation reqllired to complete this Schedule, if not shown above, will be shown in the Declarations.
The Transfer Of Rlghts Of Recovery Against Others
To Us condition does not apply to the person(s) or
organization(s) shown in the Schedule, but only to the
extent that subrogation is waived prior to the "accident"
or the "loss" under a contract with that person or
organization.
cA 04 44 t0 l3 Copyright, lnsurance Services Office, lnc., 201 1 Page I of I
=ExteNet Systems, lnc.
Commercial Auto Policy Number 4013130681
CTIA CNA68O21XX
(Ed.02/13)
-
NOTICE OF CANCELLATION TO GERTIFIGATEHOLDERS
It is understood and agreed thal:
lf you havo egreod under writlan
issued a C€nificate of lnsuranos,
lf notlce is mailed, then proof of mailing to the last known malllng addreso of the Certificateholder on file with the Agent of
Record wlll be ouftclent lo prove notice,
Any failure by us to noflfu such p€rsons or organizations wlll nol extend or invalidate such cancellation, or impose any
liability or obligation upon us or the Agent ol Record.
cNA68o21xX (Ed.02/13)
Page 1 of 1
-
Copyrfght, Cl,lA Af Rbhts R6€6rv6d.
CA Workers'Comp Policy
CIUA Workers Compensation And Employers Liability lnsurance
Policy Endorsernent
ELANKET WAIVER OF OUR FIGHT TO RECOVER FROM OTHERS
This endorsoment chang€s the policy to which it is attached.
It is agread thst Part One - Workers' Compeneation lnsurence G. Recovery From Others and Part Two ,
Employers' Liability lnsurance H. Recovery From Others are amended by adding the following:
We will not enforce our right to recover against persons or organizations. (This agreement applies only to the
extent that you perform work under a written contract that requires you to obtain this agreement from us.)
PREMIUM CHARGE - Refer to the Schedule of Operations
The charge will be an amount to which you and we agree that is a percentage of the total standard premium for
California exposure. The amount is 2%.
All other terms and conditions of the policy remain unchanged.
This endorsement, which forms a part of and is for attachment to the policy issued by the designated lnsurers,
takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another
effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy
unless another expiration date is shown below.
ExteNet Systems, lnc.
Form No: G.l9160-8 (1 t-1997)
Endorsement No: 2; Psge l ot 1
Underwriling Company: American Casualty Company of Reading, pennsylvsnia, 933 S. W6bash Ave.
Chiffigo, lL 60604
Policy No: WC 6 56871849
Policy Page: 32of46
e Copyright CNA All Rights Reserved.
T€XAS WAIVEF OF OUR RIGHT TO RECOVER FFOM OTHERS ENDORSEMENT
Texas WOS ondorsement - All Other States policy
CIUA Workers Compensation And Employers Liability lnsurance
Pnlinv F11{11y5et,t!e!l!, vlrvt Ei
Policy No: WC I56871821
Policy Page: 259of272
I
Thi6 ondorr€m€nt applies only to the insurance provided by the policy becattse Tcxas is shown in ltem 3.A' of
the lnformation Page.
we have the right to recover our payments from anyone liable for an injury covered by this policy. we will not
enforce our right against the person or organization named in the Schedule, but this waiver applies only with
respect to bodily injury arising out of the operations described in the Schedule where you are required by a
written contract to obtain this waiver from us.
Thls endorsement shall nut upuatc directly ur irrtlircr-tly tu berrefit anyone not nanred in the Schedule.
The prerrriurrr [ur this endorsement is shown in the Schedule.
Schedule
1. n Specific Waiver
Name of person or organization
fA Blanket Waiver
Any person or organization for whom the Named lnsured has agreed by written contract to furnish this
waiver.
2. Operations: All Texas Operations
3, Premium:
The premium charge for this endorsement shall be 2o/o petcent of the premium developed on payroll in
connection with work performed for the above person(s) or organization(s) arising out of the operations
described.
4, Advance Premium: Refer to Schedule of Operations
All other terms and conditions oJ the policy remain unchanged.
This endorsement, which forms a part of and is for attachment to the policy issued by the designated lnsurers,
takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another
effective date {the Endorsement Effective Date) is shown below, and expires concurrently with said policy
unless another expiration date is shown below.
ExteNet Systems, lnc.
ir"r* N"' wC +i o3 04 B (06-aoi4)
i
lEndoeemenlNo: 59: PaEe I ot 1
lUndeMrithg Company: Americsn Casually Company of Reedlng, Pennsylvania, 333 S. Wabash Ave.
I Chicago, lL 60604
i p Copyright 201 4 Nation€l Council on CompBnsation lnsurancs, lnc. All Rights Reserv€d.
All Other Stat€s endorsement - All Other States policy
CNA Workers Compensation And Employers Liability lnsurance
Policy Endorsement
We have the right to recover our payments lrom anyone liable for an injury covsrsd by this policy. We will not
enforce our right against th€ person or organization named in the Schedule.
This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule,
Schedule
Any Person or Organization on whose behalf you are required to obtain this waiver of our right to recover
from under a written contract or agreement.
The premium charge for the endorsement is reflected in the Schedule of Operations.
All other terms and conditions of the policy remain unchanged,
This endorsement, which forms a part of and is for attachment to the policy issued by the designated lnsurers,
takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another
effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy
unless another expiration date is shown below.
ExteNet Systems, lnc.
li"m r.r" wC 00 03 13 /04-1ea4t
I
I Endorsment No: 4j Page 1 of 1
I Underwriiing Company: AmeriGn Casualty Company of Reading,
| "hicago,
lL 60604
Pennsylvania,933 S- Wsbash Ave.
Policy No: WC 6 56871821
Policy Page: 18A of 272
I
WAIVEF OF OUR NrcHT TO RECOVER fSOM OTHERS ENDOFSEMENT
Copyright 1 983 Nsrionsl Council on Compensstion lnsuranc6.
NOTICE OF CANCEILATION TO CERTIF]CATEHOLDERS
All Other States Workers'Comp policy NOC endt
CT(A Workers Gompensation And Employers Liability lnsurance
Fnlinv Fqt!OrSemett!
Policy No: WC 6 5687182'l
Policy Page: 119o1272
rl
It is underrtood and agreed that:
lf ,you have agraed under written contract to provide notice of cancellation to a partv to whom the Agent o{
Record has issued a Certificate of lnsurance, and if we cancel a policy term described on that Certificate of
lnsurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to
such Certificateholders at least 30 days in advance of the date cancellation is effective.
lf notice is mailed, then proof of mailing to the last known mailing address oJ the Certificateholder on file with
the AgenL uf Reuurd will lrc sulfiuicill. Lu pruvu rloLicE.
Any failure by us to notity such persons or organizations will not extend or invalidate such cancellation, or
impose any liability or obligation upon us or the Agent of Record.
All other terms and conditions of the policy remain unchanged,
This endorsement, which forms a part of and is for attachment to the policy issued by the designated lnsurers
-- rL^ D^l:^.. EJ4--+:.,^ n^.^ ^+ ^^il ^^ll^.. ^+ +h^ h^,.' 6+^+^d i^ aaii nnlirU .'hl6FF 5h^+h6ttdNtJ EllEUt ull LlrE r ulruy LlrsulrvE Purlvy q! uq'u Pvrret'
effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy
unless another explration date is shown below.
Form No: CC68021A (02-2013)
Endorsement Eflective Date:Endorsement Expiration Date:
Undorwriting Company: American Casualty Company ol Reading, Psnnsylvania, 333 S Wabash Avo,
Chicago, lL 60604
ExteNet Systems, lnc.
I
iForm No: CC680214 (02-2013)
I
I
lEndorsement No: 1; Page 1 of I
lLJndeMiling Company: Ameri€n Casualty Company
I Chicago. lL 60604
i
of Reading, Pennsylvania, 333 S. wabash Ave-
4 CNA All Riqht8 Reserved
CNA
CA Workers'Comp policy NOC endt
Workers Compensation And Employsrs Liability lnsurance
Folicy Enrlorsernent
,l
It is understood and agrood that:
lf you have agreed under writton contract to provide notice of eancellation to a party to whom the Agent ol
Record has issued a Certificate of lnsurance, and if we cancel a policy term described on that Certificate of
lnsurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to
such Certificateholders at least 3O days in advance of the date cancellation is effective.
lf notice is mailed, then proof of mailing to the last known mailing address of the Certificateholder on file with
the Agent of Record will be sufficient to prove notice.
Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation, or
impose any liability or obligation upon us or the Agent of Record.
All other terms and conditions of the policy remain unchanged.
This endorsement, which forms a part of and is for attachment to the policy issued by the designated lnsurers,
takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another
effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy
unless another expiration date is shown below.
NOTICE OF GANCEILANON TO CERTIFICATE}IOLDEFS
Form No: CC6g021A (02-2013)
Endorsement Effective Date: Endorsement Expiration Date:
Endorsement No: 1; Pager 1 of 1
Underwriting Company: American Casualty Company of Reading, Pennsylvania. 333 S Wabash Ave,
Chicaso, lL 60604
ExteNet Systems, lnc.
Policy No: WC 6 56871849
Policy Page: 30 of46
Form No: CG680214 (02-2013)
Endorsement No: 1; Page 1 of 1
Underwritlng Company: American Casually Company ol Reading, Pennsylvania. 333 S. Wabash Ave.
Chtcago. tL 60604
t CNA All Fights Reserved.
Policy No: WC I56871849
Policy Page: 30 of 46
ADDITIONAL IT{SURED ENDOS$EMET{T
CT(A GNA Paramount Excess and Umbrella Liability
Dnli^', F,''l^'.. -rrr^.11r \,rrLt L,,rrvtJUi"uIr
Policy No: CUE 6056871852
Policy Page: 54 of 56
Policy No: CUE 6056871852
Policy Page: 50 of 56
I
This ondorsement modifies insurance provided under the following'
PARAMOUNT EXEESS AND UMBRELLA POLICY
It is und€rstood and agre€d that:
This endorsement identiJies persons or organizations who are Additional lnsureds under the section entitled
WHO lS AN INSURED of th€ policy form.
Tho porsons or organlzatlons shown ln th6 Srrhddule lrelow ure Adtlitlurral lrrsuteds but orrly if itrcluded as
ins,Jreds Under the pre,risions of the Scheduled underlying insu;anee shown in the Declarations of this policy
and then oniy lor the same coverage, except for limits of liability, sffordeci under such undoriying insuranco.
SCHCDUTE
,ffilsffirrftffiftr
Blanker as required by written contract
A ll ^+t^. +^"-^ ^^i ^^^ni+;^^- ^+ +h^ ^^l;^., r^m^i^ ',n^h^h^^d
This endorsement, which forms a part of and is for attachment to the policy issued by the designated lnsurers,
takcs effcnt on the Pnliny Fffective Date of said nolicy at the hour stated in said policy, unless another
effective date (the Endorsement Elfective Date) is shown below, and expires concurrently with said policy
unless another expiration date is shown below,
Form No: CNA87134XX (10-2016)
Endorsement Effective Date: Endorsement Expiration Date:
Endorsement No: 7; Page: 1 of 1
Underwriting Company: The Continental lnsurance Company, 333 S Wabash Av€, Chicago, lL 60604
ExteNet Sytems, lnc.
Form No: CNA871 34XX (1G.201 6l
Endorsement No: 7; Page 1 of 1
Underuriting Company: Tha Continental lnsurance Company, 333 S. Wabash Ave-
Chiego. lL 60604
{'copyright cNA All Righrs Reserved.
Prlmary/Non Contributory wording in form on Umbrella policy
CNA CNA Paramount Excess and Umbr€lla Liability
Policv
or organization which may be liable to the lnsured because of injury or damage to which this
insurance may also apply; and
vi. will not voluntarily make a payment, except at its own cost, assume any obligation, or incur
any expense, other than for first aid, without the lnsurer's prior consent.
3. Cooperation
With respect to both Coverage A - Excess Follow Form Liability and Coverage B - Umbrella Liability,
the Nam€d lnsured will cooperate with the lnsurer in addressing all claims required to be reported to
the lnsurer in accordance wilh this paragraph O. Notice of Claims/Crisis Management Event/Covered
Accident, and refuse, except solely at its own cost, to voluntarily, without the lnsurer's approval,
make any payment, admit liability, assume any obligation or incur any expense related thereto.
P. Notices
Any notices required to be given by an lnsured shall be submitted in writing to the lnsurer at the
address set forth in the Declarations of this Policy.
O. Other lnsurance
lf the lnsured is entitled to be indemnified or otherwise insured in whole or in part for any damages or
defense costs by any valid and collectible other insurance for which the lnsured otherwise would have
been indemnified or otherwise insured in whole or in part by this Policy. the limits of insurancs spacified
in the Declarations of this Policy shall apply in excess of, and shall not contribute to s clalm, lncident or
such event covered by such other inguranco,
With respect to Govorago A - Excess Follow Form Liabiliry only. if:
a. the Nam€d lneured has sgre€d in writing in a contraet or agreement with a person or €ntity that
this ineurance would be primary and would not sgek contibution from any other insiJrance
aveilable;
b. Underlying lnsutance includes that person or entity as an additional insured; and
c. Underlying lnsurance provides coverage on a primary and noncontributory basis as respects that
parson or entity;
then this insurance is primary to and will not soek contribution from any insurance policy where that
person or entity is a named insured.
R. Premium
All premium charges under this Policy will be computed according to the Insurer's rules and rating plans
that apply at the inception of the current policy period. Premium charges may be paid to the lnsurer or
its authorized representative.
S. ln Rem Actions
A quasi rn rem action against any vessel owned or operated by or for a Named lnsured, or chartered by
or for a Named lnsured, will be treated in the same manner as though the action were in personam
against the Named lnsured.
T. Separation of lnsureds
Except with respect to the limits of insurance, and any rights or duties specifically assigned in this
Policy to the First Named lnsured, this insurance applies:
1. as if each Named lnsured were the only Named lnsured; and
2. separately to each lnsured against whom a claim is made,
U. Transfe/of lnterest
Ext€Net Systems, lnc.
Form No: CNA75504XX {03-20151
Pollcy Page; 21 of 32
Underuriting Company: The Conlinental lnsurance Company,333 S. Wabash Ave.
Chlcago, lL 00604
4 Copyright CNA All Rights Reserved.
Policy No: CUE 6056871852
Policy Page: 33 of 50
Umbrolla Wavier of Subrogation wording in form
CT{A CNA Paramount Excess and Umbrella Liability
n..l: -,.Iuruy
Assignment of interest under this policy shall not bind the Insurer unless its consent is endorsed hereon.
V. UnintEntional Omlssion
Besed on lnsurer's reliance on the Named lnsured's representations as to existing hazards, if the Namsd
lnsured should unintentionally fail to disclose all srrch hazards at the effective date of this Policy, the
lrrsurcr will rrut durry cuvurugc urrtlur tlris Policy bcuause uf guch failurc.
W. Walver ol Rlghts of Rccovery
The lnsuror waivos aily right of recovery it mav lravo against anv person or organization because of
payments the lnsurer makes under this Policy il the Namod lnrured has agreed in writing to waive such
rights of recovery in a contraci or agreemeni, and oniy if ihe contract or agr€ament:
I i6 in 6f f^^r ^' h^^^'n^6 ^l{6^+n,^ dr,'in^ +hd ^^li^u ^-,i^d. 6ndvur il,v rr ru PUIU t Psr ruu, uilu
2. wau oxauuiud priur iu luas.
VII. DEFINITlONS
For purposes of this Policy, words in bold face type, whether expressed in the singular or the plural, have the
meaning set forth below,
Advertisement means a notice that is broadcast or published to the general public or specific market segments
duuut UtE tldiltug iltturuu D ljguuu, ptguuutS ut Sgtvtucs tu( iltE pu{[rusE ur druduur19 uuJrulrrvrJ vr JulrPvrrerr.
For the purposes of this definition:
A. notices that are published include material placed on the lnternet or on similar electronic means of
communication; and
B. rcgarding web-sitcs, only that part of a we b"site that is abourt the Named lnsr,rred's ooods, Froducts or
services for the purposes of attracting customers or supporters is considered an advertisement.
Aircraft means any machine or device that is capable of atmospheric flight.
Arbitration proceeding means a formal alternative dispute resolution proceeding or administrative hearing to
which an lnsured is required to submit by statute or court rule or to which an lnsured has submitted with the
lnsurer's consent,
Asbestos means the mineral in any form whether or not the asbestos was at any time airborne as a fiber,
particle or dust, contained in or formed a part of a product, structure or other real or personal property, carried
on clothing, inhaled or ingested. or transmitted by any othet rneans.
Authorized lnsured means any executive officer, member of the Named lnsured's risk management or in-house
general counsel's office, or any employee authorized by the Named lnsured to give or receive notice of a claim.
Auto means:
A. a land motor vehicle, trailer or semitrailer designed for travel on public roads. including any attached
machinery or equipment; or
B. any other land vehicle that is subject to a compulsory or financial responsibility law or other motor
velricle irrsularrue law wlrcre it is liuerrsct-l ur prirruipally garaged.
However, auto does not include mobile equipment.
Bodily injury means bodily iniury, sickness or disease sustained by a person, including death, humiliation,
shock, mental anguish or mental injury sustained by that person at any time which results as a consequence of
the bodily injury, sickness or disease.
Claim means a:
A. suitForn No: CNA755O4XX (O3-2O15) Policv No: CUE 605687'1852
Policy Pagei 22 ot 32
Underwriting Company: The Continental lnsurance Company, 333 S Wabash Ave, Chicago, lL 60604 Policy Page: 34 of 56
ExteNet
Fom No: CNA75504XX (03-20151
Policy No: CUE 6056871852
Policy Page; 34 of 56Policy Page:
UndeMriling
22o|.32
Company: The Continental lnsurance Company. 333 S, Wabash Ave.
Chicago, lL 60604
I Copvright CNA All Rights Reserved.
Umbrella 30 Days NOC endorsement
CNA CNA Paramount Excsss and Umbrella Liabitity
Policvholder Notice
POTICY HOLDER I'IOTICE - COUNTRYWI9E,l
It is undorstood and agr€ed that:
lf tho Named lnsured has agreod under writton contract to provide notic€ of cancellation to I party to whom tho
Agent of Fecord has issued a Certificate of lnsurance, and it th€ lnsursr cancels a policy term described on that
Certificate of lnsuranco for any r€ason oth6r than nonpayment of premium, thsn notico of cancellotion will bs
provid€d to such Certificate holdors at lea$t 30 days in advance of the date cancellation is effeetive,
lf notice is mailed, then proof of mailing to the last known mailing address of the Certificate holder on file with
the Agent of Record will be sufficient to prove notice.
Any tailure by the lnsurer to notify such persons or organizations will not extend or invalidate such cancellation,
or impose any liability or obligation upon the lnsurer or the Agent of Record.
All other terms and conditions of the policy remain unchanged.
This endorsement, which forms a part of and is for attachment to the policy issued by the designated lnsurers,
takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another
effective date {the Endorsement Effective Date) is shown below, and expires concurrently with said policy
unless another expiration date is shown below.
ExteNet Systems, lnc.
No; CNA75041XX (01-2015.l
Policy No: CUE 6056871852
Policy Page: 3 of 56No: 'l;Page'l of 1
Company: Ths Continontal lnsurane Company, 333 S. Wabash Ave.Undemriting
Chiego, lL 60604
$ CopVright CNA All Rights Roserved.
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